Walker v. State , 55 Tex. Crim. 546 ( 1909 )

DAVIDSON, Presiding Judge.

Appellant was convicted of burglary. Omitting formal parts, the indictment charges as follows: "did then and there unlawfully by force, threats and fraud, burglariously and fraudulently break and enter a house then and there occupied by one L. S. Stuart,” etc.

1. The court charged the jury, generally, in applying the law to the case, that if they should find that defendant, Tim Walker, in Grimes County, either alone or acting with Dave Holiday, etc., with force applied to the building did break and enter the house occupied by L. S. Stuart, he would he guilty. The charge of the court is not set out literally, and only the above, statement is made to call attention to the point made by appellant; that is, that under the allegation in the indictment the court should have limited the charge to a daytime breaking. It will be noted that the court did not select either day' or night breaking, and it may be stated that the court’s charge covered a daytime or a night-time burglary. Appellant’s contention is that under the peculiar allegation in the indictment the court should have limited the jury to the consideration of a daytime-burglary. We are of opinion that the contention is not correct. This question was decided adversely to appellant in the case of Carr v. State, 19 Texas Crim. App., 635. The Carr case has been followed in an unbroken line of decisions, of which there has been quite a number written.

2. The other questions suggested for revision can not be revised in the absence of the evidence. The record does not contain a statement of facts.

As the record is before us, there is no sufficient reason shown for a reversal of the judgment, and it is therefore affirmed.

Affirmed.