Williams v. State
| Decision Date | 22 October 1887 |
| Citation | 5 S.W. 838 |
| Parties | WILLIAMS v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Fannin county; D. H. SCOTT, Judge.
The charging part of the indictment reads as follows: " * * * did then and there unlawfully, in the day-time, by force and fraud break and enter a house there situate, and occupied and used by Jake Williamson, without the consent of said Jake Williamson, with the intent to commit theft; and the said Tom Williams did then and there fraudulently take from the house, and from the possession of the said Jake Williamson, one pair of pants of the value of one dollar, the same being the corporeal personal property of the said Jake Williamson, without the consent of the said Jake Williamson, and with intent to deprive the said Jake Williamson of the value thereof, and to appropriate the same to the use and benefit of him, the said Tom Williams." The second count was in the same language, except that it charged the offenses to have been committed at night. The penalty assessed was a term of two years in the penitentiary. The facts developed on the trial are not involved in the rulings of this court.
No appearance for appellant. Asst. Atty. Gen. Davidson, for the State.
This prosecution was for burglary and theft, and the indictment contained two counts, — one for a burglary and theft in the day-time, and one for burglary and theft at night. The defendant was convicted and adjudged guilty of burglary, and the only question arising upon the record is as to the sufficiency of the indictment as a charge for burglary. It will be noted that the counts are not for burglary alone, but each one charges conjointly a burglary and theft. In substance and effect the charge is that the defendant entered the house to commit the theft, and, while it does not give in that connection the elements of the theft he intended committing, it does charge all the elements of the theft he actually committed, and connects in one sentence, by the conjunction "and," the intent with the act, which act is fully described in the statutory words used to define theft. The pleader has followed form 461 of Wilson's Crim. Forms, 200. It is not burglary with intent to commit theft alone which was the crime intended to be charged. In such case form 460, Id., would have been followed, and, in such case, where the offense intended, and not its actual commission, is the object, the intended offense must also be charged, with all its ingredients....
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...fatal variance. Dunham v. State, 9 Tex. App. 330; Miller v. State, 16 Tex. App. 417; Black v. State, 18 Tex. App. 124; Williams v. State, 24 Tex. App. 69, 5 S. W. 838. We charge that A., B., and C. committed a crime, and prove that A. alone was guilty. We charge that A. alone committed a cr......
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...long been established that the offenses of burglary and theft may be charged in the same court of a single indictment. Williams v. State, 24 Tex.App. 69, 5 S.W. 838 (1887); Turner v. State, 22 Tex.App. 42, 2 S.W. 619 (1886); Bernal v. State, 95 S.W. 118 Under former Penal Code provisions it......
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...said John Joseph Malazzo, Jr. While not alleging burglary in the customary form, the indictment appears to be sufficient. Williams v. State, 24 Tex.App. 69, 5 S.W. 838; Bigham v. State, 31 Tex.Cr.App. 244, 20 S.W. 577; Coates v. State, 31 Tex.Cr.App. 257, 20 S.W. The breaking and entry of t......
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