Powers v. State , 154 Tex. Crim. 73 ( 1949 )

ON MOTION FOR REHEARING.

HAWKINS, Presiding Judge.

In the same count in the indictment appellant was charged with the burglarious entry of a house, and a completed offense of felony theft. In a motion for rehearing it is contended that under such pleading there can be no conviction for theft in the absence of proof that the entry of the house was burglarious; that the evidence fails to show a burglarious entry, therefore, a reversal must follow.

As we understand it, appellant relies upon Miller v. State, 16 Tex. App. 417, Howard v. State, 8 Tex. App. 447; Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Smith v. State, 22 Tex. App. 350; Williams v. State, 24 Tex. App. 69, 5 S. W. 838. We are not impressed that the cases support appellant’s contention. They deal with the effect of a conviction for theft under such pleading where a further conviction for burglary was sought, or where, under such pleading, there had been a conviction for burglary and a further conviction for theft was sought. This point was in no way involved in the present case. Here the conviction was for felony theft which had been properly charged. There had been no conviction for burglary.

The latest expression from our court upon the subject which we find is in Bernal v. State, 95 S. W. 118. This case is not reported in our Texas Criminal Reports, and perhaps in that way escaped appellant’s notice. It is so closely in point we quote therefrom as follows:

“Appellant was convicted of theft, and his punishment fixed at confinement in the county jail for six months.

“Appellant insists the case should be reversed because the jury was not authorized under the indictment to convict of theft. The indictment charges burglary — that is, breaking of the house with intent to commit theft — and then, in the same count, charges appellant with theft. We understand this form of indictment is permissible; that is, both burglary and theft may be charged in the same count in the indictment or information. Dunham v. State, 9 Tex. App. 330. Unquestionably under such an indictment a party may be convicted of burglary, and such a conviction will be a bar to any subsequent prosecution for theft committed in the same burglary. Dunham v. State, supra; Miller v. State, 16 Tex. App. 418; Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Williams v. State, 24 Tex. App. 69, 5 S. W. 838. If, under such conviction for burglary, where the indictment contains a charge for both burglary and theft, it will be a bar to a subsequent prosecution for theft, of course, a conviction for theft will be a bar to a subsequent prosecution for burglary. We hold that the conviction for theft under this indictment was a proper conviction. The indictment was not vicious which contained in the same count both offenses properly alleged.”

Appellant’s motion for rehearing is overruled.