Weeks v. State

Hurt, J.

The defendant was charged with burglary by breaking and entering the house of Emma Whitney with intent to commit the offense of theft. Upon trial he was convicted of an attempt to commit burglary. This indictment alleges the entrance by force, and not in any other manner. (Sullivan v. The State, ante, p. 462.) This being the case, the evidence and charge of the court must be confined to an attempt by force. There being no statement of facts, we are not aware of the character of the evidence introduced.

The charge, however, is not confined to such an attempt. It embraces any and all means of entry or attempts at an entrance. Upon this subject it is as follows: “If you believe from the evidence that the house alleged was occupied and controlled by Emma Whitney; that the defendant, as charged in the indictment, did endeavor by actually attempting to enter the same,” etc. How attempting—by force, threats or fraud? The indictment selects force. To this the charge must be confined, let the evidence be what it may. Upon this subject we desire to say that unless the proof carries the case far enough to indicate the manner of the intended entrance, it will not be sufficient to convict.

The charge of the court being radically defective, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered February 14, 1883.