Levine v. State , 22 Tex. Ct. App. 683 ( 1887 )

Hurt, Judge.

This is an appeal from a judgment of conviction for the offense of burglary. The indictment alleges that the appellant, “by force, threats and fraud, did break and enter” the house. The entry,' according to the record, was made in the day time, through a window.

The court instructed the jury that “the offense of burglary is constituted by entering a house by force, threats or fraud, by night.” In this case there was no evidence of the employment of threats or fraud, or that the entry was effected in the night time. The court also charged that the offense might be completed “by entering a house during the day time and remaining concealed therein until night.” There was no evidence of an entry by day, and a remaining until night.

In treating of the character of force necessary to constitute a breaking, the court charged: “It may be by lifting the latch of a door that is shut, or by raising a window; the entry at a chimney or other unusual place; the introduction of a hand or any instrument to draw out the property through an aperture made by the offender for that purpose.”

Opinion delivered January 22, 1887.

There was no latch, door or chimney; no introducing of a hand or other instrument, testified to in the record. If the appellant was guilty of a burglarious entry, it was by reason of the fact that, with intent to steal, he entered through a window in the day time. This was the case made by the evidence, and to it the charge should have been restricted. (Art. 594, Code Crim. Proc.; Shultz v. The State, 5 Texas Ct. App., 390.)

The appellant having duly excepted to the charge, upon the grounds noticed, the error of the court is such as must work a reversal of the judgment. (Art. 602, Code Crim. Proc.; 9 Texas Ct. App., 110; 10 Texas Ct. App., 539; 12 Id., 429; 13 Id., 33 and 41; 14 Id., 485 and 534; 16 Id., 411; 17 Id., 188; 19 Id., 166; Paulin v. The State, 21 Texas Ct. App., 436.)

The judgment is reversed and the cause remanded.

Reversed and remanded.