John Smith v. The State, 22 Tex. Ct. App. 350

White, Presiding Judge. Appellant’s conviction in the lower court was had upon an indictment charging him with burglary. After conviction he assailed the sufficiency of the indictment by a motion in arrest of judgment upon the ground that there was no allegation negativing want of consent of the owner of the house to the burglarious entry. In Brown v. The State, 7 Texas Court of Appeals, 619, such allegation was said to be essential, but that case was expressly overruled on that point in Sullivan v. The State, 13 Texas Court of Appeals, 462; Reed v. The State, 14 Texas Court of Appeals, 662; Mace v.

The State, 9 Texas Court of Appeals, 110; Buntain v. The State, 15 Texas Court of Appeals, 485; Langford v. The State, 17 Texas Court of Appeals, 445; Black v. The State, 18 Texas Court of Appeals, 124.

Appellant, in addition to his plea of not guilty, interposed a •plea of former conviction and jeopardy, in that he had been tried, convicted and punished for the theft perpetrated in connection with the burglary herein charged against him; that the transaction out of which the two offenses grew was one and the same, and that the State could carve and hold him liable for but one offense growing out of a single transaction.

It is a statutory provision that " if a house be entered in such manner as that the entry comes within the definition of burglary, and the person guilty of such burglary shall, after so entering, commit theft or any other offense, he shall be punished for burglary and also for what ever offense is so commited.” (Penal Code, Art. 712.) The contention is that this statute is unconstitutional in that it renders nugatory the provision against twice in jeopardy. An answer to this position might be found in the fact that this

article of the code was enacted by the Legislature on the twelfth of February, 1858, long before the adoption of either of our three last State Constitutions, and that said Constitutions were adopted with reference to it as part of the law of the land. But we do not propose to go anew into a discussion, of this question. It was thoroughly discussed in Howard v.

The State, 8 Texas Court of Appeals, 447, and, though it was admitted in that case that the authorities were in conflict, it was held that burglary and theft committed in one and the same transaction could both be prosecuted and punished as separate offenses, though not as joint offenses. (See also Miller v. The State, 16 Texas Ct. App., 417.) Opinion delivered November 17, 1886.

In ex parte Peters, 2 McCrary, 403, it is said: “According to the great weight of authority it may be regarded as settled that a person who breaks and enters a house with intent to steal therefrom, and actually steals, may be punished under separate indictments, for two offenses or one, at the election of the power prosecuting him. (1 Bish. Cr. Law, sec. 1062, and cases cited.) The case of Josslyn v. The Commmonwealth, 6 Metcalf (Mass.), 236, is directly in point. (See, also, State v. Ridley, 48 Ind., 370, and Breese v.

The State, 12 Ohio St., 146.) The opposite view was ably stated by Chief Justice Waite, in his dissenting opinion in Wilson v. The State, 24 Connecticut, 57, and his reasoning is so strong that if it were a question of first impression I should be inclined to adopt his opinion. Looking, however, to the adjudicated cases, I find the law to be very well settled against the position assumed by counsel for the petitioner.” (See same case reported in 12 Meyer’s Fed.

Dec., 2221.) No proper diligence was shown to obtain the newly discovered testimony mentioned in the motion for a new trial, and it Was not error to overrule it. Because there is no error in the conviction, the judgment is affirmed. Affirmed.