Edwards v. State , 36 Tex. Crim. 387 ( 1896 )

Appellant was convicted of burglary, and given three years in the penitentiary, and prosecutes this appeal. The indictment was in the ordinary form, and charges that "the defendant, at night, by force and fraud, did break and enter a house there situate, and occupied and controlled by J.T. Brown, without the consent of the said J.T. Brown, and with the intent then and there fraudulently to take from the said house corporeal property therein being and belonging to the said J.T. Brown, and from the possession of the said J.T. Brown, without his consent, and with intent to deprive him of the same, and to appropriate it to the use and benefit of him the said defendant." The proof shows that the alleged burglary was committed in a store; that the store was open for business at night until 10 or 11 o'clock; that the customers were going and coming, entering the store at will; that the defendant entered, as other persons, at the open door, and during business hours, and concealed himself in the store, and when the clerks left they locked him in the store. Thereafter he rifled the money drawer, obtaining a $20 bill, and some other smaller change, and made his exit by breaking open a window from the inside, and thus escaping from the house. The court, after defining the constituent elements of burglary under our statute, charged the jury as follows: "If you believe from the evidence that the defendant, by force and fraud, in the nighttime, did enter the house of J.T. Brown, as charged in the indictment, with the intent to commit the crime of theft, you will find him guilty of burglary," etc.; and further charged them specially "that, if they believed that the defendant entered the house of the said Brown in the nighttime, through the open door, and that he so entered said house with the intention of secreting himself therein until the occupants thereof left the same, and with the intent to fraudulently take from said house, after the said occupants had closed and left the same, corporeal personal property therein being and belonging to the said J.T. Brown, without the consent of the said J.T. Brown, with the intent to deprive said Brown of the value of the said property, and to appropriate the same to the use and benefit of the said defendant, to find him guilty," etc. Our statute on the subject provides as follows: "Burglary is constituted by entering a house by force, threats or fraud at night or in like manner by entering a house during the day and remaining concealed therein until night, with the intent in either case to commit a felony or the crime of theft." Penal Code, 1895, Art. 838. The view taken by the court, as is manifest in the above charge, is that an entry at night into a store, during business hours, through an open door, as other persons enter, with intent to conceal oneself until the close of business hours, and the owner had looked the store — if the secreted person then committed a theft, and broke out, it constituted a fraudulent entry, and was burglary. Possibly the entry in this case was with intent to steal, but no contrivance or artifice was used with intent to gain an entry. The statute does not constitute an entry into a house in the nighttime, and remaining concealed therein, a burglarious entry; and the fact that it makes a daytime entry and concealment until night a burglarious entry would appear to exclude the other idea. We would not be understood, however, as holding that an entry by any character of fraud or stratagem at night would not constitute a burglarious entry. This is within the purview of the statute, but does not embrace an entry not procured by some fraud. In this case, while the purpose with which the defendant entered was possibly to steal, yet there was no fraudulent device or stratagem used in procuring an entry into said store. He entered as other persons, through the open doorway, during business hours. This character of entry did not constitute a burglary at common law, and not until the statute of 12 Anne was it burglary to break out of a house. This statute was brought forward by 7 and 8 Geo. IV., Chap. 29, and was in turn superseded by 24 and 25 Vict., Chap, 96. See, 2 Bishop's Crim. Law, § 99. It has been held in a number of States, and under a statute substantially similar to ours, and which did not embrace the provisions of 24 and 25 Vict., Chap. 96, with reference to breaking out of a house, that the offense was not burglary. See, State v. Mcpherson, 70 N.C. 239; White v. State, 51 Ga. 285; Rowland v. Com., 82. Pa. St., 306. Some of these States take cognizance of offenses at common law, and the above authorities show that, in the absence of an express statute on the subject, such an entry was not an offense at common law. In the view we take of it, our statute does not constitute the facts proved in this case an offense. We believe it should be done, but, as the law now stands, we are constrained to reverse and remand the case, and it is accordingly so ordered.

Reversed and Remanded.

HURT, Presiding Judge, absent.