Hardin v. State , 98 Tex. Crim. 671 ( 1924 )

ON REHEARING.

Two points are stressed in the motion and argument thereon. The indictment charged a breaking and entry by force with intent to commit theft, and in this form would have supported a prosecution for either a day time or a night time -burglary. The proof showed a day time burglary. The court submitted to the jury in his charge the law of a day time burglary. Appellant now objects to this procedure. We do not regard the charge as on the weight of the evidence because it referred only to a day time burglary. Such charge was applicable to the facts as shown by the witnesses, and puts a greater burden on the State because it requires that the proof show beyond a reasonable doubt that the breaking was by force applied to the building. Appellant has no proper complaint.

Appellant also urges error in that the court told the jury, as appears from the transcript, in the event they found appellant guilty to assess his punishment for any time not less than two nor more than twelve, the word “years” being omitted in this part of the charge. There was no exception taken to the charge as is required by the terms of Art. 735 of our C. C. P. and there is no doubt in our minds but that if the transcript before us correctly presents the charge of the trial court on this particular point, if his attention had been called to this matter by an exception, the charge would have been corrected. We are forbidden by the express terms of Art. 743 of our C. C. P. to reverse cases for errors in the charge unless same were excepted to and are calculated to materially injure the rights of the appellant. The jury gave him the lowest penalty for the crime of burglary. We are not able to bring ourselves to believe any injury resulted if in fact the word “years” was omitted from the charge as presented. Thompson v. State, 91 Texas Crim. Rep., 234.

Being unable to agree with the contentions of learned counsel for appellant, the motion for rehearing will be overruled.

Overruled.