C. R. Painter v. The State, 26 Tex. Ct. App. 454

Hurt, Judge. This conviction is for burglary. There were two openings into the house through which an entry could have been made. The only usual place of entrance was closed late on the evening of the night of the burglary. While the other places or openings were sufficiently large to admit of an entry by an individual, still neither was a usual place of entrance. Opinion delivered November 21, 1888.

Now, it follows from the provisions of the code that, whether the entry ,'into the house was by untying a rope which secured the door to the house, or by entering at the other openings, the other ingredients attending, burglary would be the result. The facts, though circumstantial, exclude the idea that there was more than one door to the house, or that there was more than one usual entry. (Penal Code, arts. 704, 708; Anderson v. The State, 17 Texas Ct. App., 309, 311; Hamilton v. The State, 11 Texas Ct. App., 120; Martin v. The State, 21 Texas Ct. App., 1; Carr v. The State, 19 Texas Ct.

App., 658.) But counsel for appellant contends that the proof fails to show that the entry was at night. The circumstances render it morally certain that the entry was at night. Of this there can be no reasonable doubt. There were no exceptions reserved to the charge of the court. Taken as a whole, we think it was correct—at least without préjudice to appellant. The requested instructions were properly refused. The court had already instructed the jury with reference to the rules and principles governing a case depending for conviction upon circumstantial evidence.

The requested instructions relating to the fact that the house had several places of entrance were properly refused, because the proof showed them to be unusual places of entering the house; and hence, if appellant entered at either of these places, he would be guilty so far as the question of entering is concerned. The indictment alleged that the house was owned by E. W. Bullard. This was true, and the fact that E. W. Bullard permitted his son to house some corn therein does not affect this fact. There is no variance between the allegation and proof.

That appellant entered the house at night and stole the saddle pockets is beyond question; and that the entry was burglarious is made to appear with reasonable certainty. The judgment is affirmed. Affirmed.