S. A. Melton v. The State, 24 Tex. Ct. App. 287

White, Presiding Judge. It was charged by the indictment in this case that defendant did “by force in the night time break and enter a house then and there owned and occupied by Johnson McIntyre, without the consent of said Johnson McIntyre, and with the intent then and there, by force,^ threats and fraud, to have carnal knowledge of one Allie J. McIntyre, then and there being in said house, without her consent,” etc. This is a companion case to the one just affirmed against the same party for an attempt to commit rape in the same transaction.

To constitute a nocturnal burglary under our statute, the house must have been entered by force, threats or fraud. (Penal Code, art. 704.) As made by the evidence in this case, there is not a tittle of testimony which, it is claimed, in any manner sustains the allegations of threats and fraud as the means used in accomplishing the entry.

If sustained at all, the conviction rests ■solely upon the allegation of an entry by “force.” It is shown by the evidence that the house was open—not a door or window closed—and that defendant, in his stocking feet, entered through ithe open doors without the consent of any one, and without any force whatsoever being used against the building or any occupant therein, to effect the entry. As to the character of entry, the case is identical in its allegation and proofs with that of Hamilton v.

The State, 11 Texas Court of Appeals, 116, in which it was held that such evidence did not sustain an allegation of entry by “force” under our statute concerning burglary, and that case was reaffirmed in Ross v. The State, 16 Texas Court of Appeals, 554. In Allen v. The State, 18 Texas Court of Appeals, 120, it was held that to warrant a conviction the evidence must prove beyond a reasonable doubt the entry as alleged.

In Carr’s case, 19 Texas Court of Appeals, 659, it is said: “We conclude, if at night, force of any character, whether applied to the building or not, if resorted to to effect an entry, comes within the term ‘force’ used in

article 704 of the Penal Code.” Opinion delivered November 12, 1887. The general charge of the court to the jury did not submit the law applicable to the facts as to the entry as proved. A Requested instruction upon that phase of the evidence was refused, and exceptions were reserved to the charge as given, for insufficiency in that regard and also for refusal of the special instruction. We are of opinion that both exceptions are well taken.

The refused instruction was, in substance, that the charge in the indictment being “by force in the night time,” the entry must be proven as alleged beyond a reasonable doubt. No other entry can sustain a conviction in this case. “Force” and “break,” as used in the indictment, mean violence used by defendant to obtain entrance into the house, and any violence is sufficient. If the language in which this instruction was couched was, in the opinion of the court, calculated to mislead the jury, he could have changed it so as to avoid that effect.

At all events, the instruction was sufficient to call attention to a material and eventually important omission in the given charge, and the same should have been supplied. We are of opinion that the evidence as to the entry is not sufficient to sustain the charge nor the conviction for burglary. And this seems to be the opinion of our Assistant Attorney General, as ingeniously expressed in his brief. The judgment is reversed and the cause remanded. Reversed and remanded.