Painter v. State
Painter v. State
Opinion of the Court
This conviction is for burglary. There were two openings into the house through which an entry could have been made. The only usual place of entrance was closed late on the evening of the night of the burglary. While the other places or openings were sufficiently large to admit of an entry by an individual, still neither was a usual place of entrance.
Now, it follows from the provisions of the code that, whether the entry ,'into the house was by untying a rope which secured the door to the house, or by entering at the other openings, the other ingredients attending, burglary would be the result. The facts, though circumstantial, exclude the idea that there was more than one door to the house, or that there was more than one usual entry. (Penal Code, arts. 704, 708; Anderson v. The State, 17 Texas Ct. App., 309, 311; Hamilton v. The State, 11 Texas Ct. App., 120; Martin v. The State, 21 Texas Ct. App., 1; Carr v. The State, 19 Texas Ct. App., 658.)
But counsel for appellant contends that the proof fails to show that the entry was at night. The circumstances render it morally certain that the entry was at night. Of this there can be no reasonable doubt.
There were no exceptions reserved to the charge of the court. Taken as a whole, we think it was correct—at least without préjudice to appellant.
The requested instructions were properly refused. The court had already instructed the jury with reference to the rules and principles governing a case depending for conviction upon circumstantial evidence. The requested instructions relating to the fact that the house had several places of entrance were properly refused, because the proof showed them to be unusual places of entering the house; and hence, if appellant entered at either of these places, he would be guilty so far as the question of entering is concerned.
The indictment alleged that the house was owned by E. W. Bullard. This was true, and the fact that E. W. Bullard permitted his son to house some corn therein does not affect this fact. There is no variance between the allegation and proof. That appellant entered the house at night and stole the saddle pockets is beyond question; and that the entry was burglarious is made to appear with reasonable certainty.
The judgment is affirmed.
Reference
- Full Case Name
- C. R. Painter v. State
- Cited By
- 2 cases
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- Published
- Syllabus
- 1. Burglars’—Evidence—Fact Case.—See the statement of the case for evidence held sufficient to establish a burglarious entry at night of the house by the accused, and therefore to support the conviction for burglary. 2. Same—Charge of the Court.—A special charge of the court was requested by the accused to the effect that if the jury found that there were large openings in said building, so situated as to admit of an easy entrance without force, and that the same could have been naturally' used for said purpose and had been used for said purpose, and that at the time said property was taken an entry was made through either of said openings or unfinished ends, then the defendant is not guilty. Held, that the trial court did not err in refusing the said special charge, because, as the openings referred to were unusual places of entry, an entrance through either of them would be a burglarious entrance. 3. Same—Variance.—Indictment alleged the ownership of the house to be in E. W. Bullard. The ownership of the house was proved as alleged, and it was further proved that the said E. W. Bullard permitted his son to store corn in the said house. Held that such proof does not amount to a variance between the allegation and the proof.