Williams v. State
| Decision Date | 24 April 1901 |
| Citation | 62 S.W. 1057 |
| Parties | WILLIAMS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Cummings & Baskin, for appellant. O. S. Lattimore, Co. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.
This case was affirmed at the Dallas term, and on appellant's motion for rehearing the same was granted, and the judgment reversed, and the cause remanded. The decision was predicated on the construction of the amendment of 1899 to our statutes on burglary. See Acts 26th Leg. p. 318. We held, following Osborn v. State (Tex. Cr. App.) 61 S. W. 491, that said amendment made burglary of a private residence a distinct offense, and that the indictment was defective in failing to make the allegations required in the amendment. In deciding this case on motion for rehearing our attention was not called to the facts of this case, showing that it was a daytime burglary, nor the peculiarities of the amended statute, and consequently we overlooked the fact that the amendment relating to the burglary of a private residence by force, threats, or fraud refers to a nighttime burglary; or, if a daytime burglary, entering a private residence, and remaining concealed therein until night, with intent in either case of committing a felony or the crime of theft. The assistant attorney general, in the present motion for rehearing, has called our attention to the terms of the statute as above suggested, and insists that the facts here show a daytime burglary of a private residence, and that the amendment in question does not apply to this character of case. An examination of the record bears out the contention of the state in this regard, and we accordingly hold that the facts here shown do not come within the purview of the amended act as the burglary of a private residence in the nighttime. The daytime burglary of a private residence is not affected by the new statute, but is left as an offense under article 838, Pen. Code, as simply the burglary of a house. The indictment is a good indictment for the burglary of a house, although a private residence, in the daytime. We accordingly overrule the case of Osborn v. State, supra, and the cases which may have followed that. State's motion for rehearing is granted, the former order reversing the judgment and remanding the cause is set aside, and the judgment is affirmed in accordance with this and the original opinion.
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Converse v. State, 21237.
...not be had under an indictment charging ordinary burglary. This holding was corrected in Williams v. State, 42 Tex.Cr.R. 602, 61 S.W. 395, 62 S.W. 1057, which pointed out that a daytime burglary of a private residence could be sustained under an ordinary indictment for burglary. In Martinus......
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