State v. Robertson

• Citation: 32 Tex. 159
• Parties: THE STATE v. JOHN ROBERTSON.
• Decision Date: 01 January 1869
• Court: Supreme Court of Texas

32 Tex. 159

THE STATE

v.JOHN ROBERTSON.

Supreme Court of Texas.

1869.

1. Burglary, as defined in our penal code, may be committed by methods which were not known to the common law.

2. See the opinion of the court in this case for a discussion of the several statutory provisions of the code respecting the crime of burglary.

3. It is burglary under the penal code of this state to enter a house in the daytime, by breaking, with intent to commit a felony.

4. The word “breaking,” used in the statute, implies actual force, but not such force as would necessarily amount to violence.

5. In all cases the entry must be with a felonious intent; which intent is manifested after the entry by the attempted or actual commission of some specific felony, and which ought to be alleged in the indictment, according to the facts of the case.

6. See this case for an indictment which, though inartistically drawn, is held to be sufficient in a prosecution for simple burglary, by entering a house in daytime, by breaking, with intent to commit a felony.

APPEAL from Smith.

The indictment charged that “John Robertson, late of the county of Smith, on the twenty-ninth day of March, in the year of our Lord one thousand eight hundred and sixty-eight, in the said county of Smith, with force and arms did feloniously break and enter the dwelling house of Frank Robertson, the said Frank Robertson then and there occupying and living in said house as a dwelling house. The said John Robertson did enter the said dwelling house of the said Frank Robertson with intent to fraudulently take and carry away a gun, of the value of five dollars, two pairs of shoes of the value of three dollars, one undershirt, of the value of seventy-five cents, the corporeal personal property of the said Frank Robertson, without his consent, and with intent to deprive the owner of the value of the same, and against the peace and dignity of the state.”

To this indictment the defendant excepted: first, that no offense was charged; second, the offense was not charged to have been burglariously committed; third, it was not charged to have been committed by force, threats or fraud; fourth, nor that the defendant unlawfully entered the house at night, or during the day and remained there until night, with intent to commit a felony; and, fifthly, it was not charged that the entrance was made for the purpose of committing a felony.

These exceptions being sustained, the state appealed.

E. B. Turner, Attorney General, for the state.

This appeal is taken by the state from a judgment of the court quashing the indictment.

The indictment is inartificially drawn, but is framed to cover the burglarious entry of a dwelling house with intent to commit theft (and consequently a felony), as theft from a house is felony. See Pas. art. 2408.

It is objected that the indictment is insufficient in not stating, first, that the entry was burglariously made. The word burglary is a term of art, and is no longer necessary to the validity of the indictment. This view is fully sustained by the case of Calvin v. The State, 25 Tex. 791.

This was a case of felony, and Judge Bell, with the concurrence of the entire court, held the word “felonious” not indispensable in a capital felony.

What is burglary? It is entering a house by force, threats, or fraud, at night, or by entering in the like manner by day, and remaining concealed until night, with intent in either case to commit a felony. Pas. art. 2359.

He is guilty of burglary who, with intent to commit a felony by breaking, enters a house in the daytime. This would read better if it said: He is guilty of burglary who enters a house by breaking, in the daytime, intending to commit a felony. The several succeeding articles define what shall be a sufficient breaking.

The terms breaking and by force are used in the statute as synonymous terms. That breaking in art. 2360 means the same as by force in art. 2359, see art. 2363.

It is thus evident that to say that a party, with force and arms, did break and enter a dwelling house, is a full description of the offense; and if this be a substantial description of the offense, the indictment will be sustained, although not in the words of the statute. See State v. Moreland, 27 Tex. 726.

If the entry mentioned in the law be made in the night, with intent, etc., or if made in the daytime with the like intent, this is clear from the two arts. 2359 and 2360; so that it follows that the indictment charges the offense, whether the entry was effected by day or night, and therefore the indictment should have been sustained.

There is no different punishment for burglarious entering by day or night; but if any other felony be committed, it increases the punishment therefor according to circumstances.

The whole of chapter 4 of the penal code must be consulted. Art. 2372 uses the word “breaking” in speaking of burglary, and omits the words “by force.”

The indictment is drawn with...