
    DODD v. STATE.
    (No. 11270.)
    Court of Criminal Appeals of Texas.
    Dec. 21, 1927.
    Burglary <§=»28(I) — Conviction for burglary of house cannot be sustained under proof of burglary of private residence at night, made distinct offense by statute (Pen. Code 1925, arts. I389>-I39'i, 1397).
    In prosecution for burglary under indictment charging entry of house for purpose of theft, punishable under,,Pen. Code 1925, arts. 1389, 1390, 1397, with from 2 to 12 years’ imprisonment, conviction for burglary of house could not be sustained under proof showing entry in nighttime for purpose of theft of private residence, made distinct offense by article 1391, and punishable by imprisonment for any term not less than 5 years.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Bill Dodd was convicted of burglary, and he appeals.
    Reversed.
    Florence & Florence, of Gilmer, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of 2 years.

In the indictment the entry of the house of R. G. Friddle for the purpose of theft is charged. The proof made was that the private residence of R. G. Ftiddle was entered for the purpose of theft at nighttime. Under articles 1389 and 1390, P. C. 1925, the penalty for the burglary of a house, whether committed in the daytime or nighttime is confinement in the penitentiary for not less than 2 nor more than 12 years-. Article 1397. In article 1391, P. C. 1925, the'offense of burglary of a private residence at night is denounced under a penalty of confinement in the penitentiary for any term of years not less than 5. The statute, in express terms, says:

“Such burglary is a distinct offense, and nothing making it such shall alter or repeal the two preceding articles,”

—namely, the two mentioned above. In view of the terms of the statute denouncing the offense of burglary of a private residence at night, and the fact that the penalty is much greater than that prescribed for ordinary burglary of a house, and the declaration in the statute that the offense of burglary of a private residence at night is a distinct op fense, different from that of ordinary burglary, this court declared soon after the passage of article 1391 that, where the indictment was drawn under article 1389 or 1390, supra, charging ordinary burglary, and the proof showed that if there was an offense it was a nighttime burglary of a private residence, the conviction could not stand on appeal. Such announcement by this court has been repeated whenever the question has arisen. See Martinus v. State, 47 Tex. Cr. R. 528, 84 S. W. 831, 122 Am. St. Rep. 709; Miller v. State, 81 Tex. Gr. R. 239, 195 'S. W. 192; Robinson v. State, 82 Tex. Gr. R. 579, 200 S. W. 162. In reaching this conclusion, the court assumed that the Legislature, in creating the distinct offense of nighttime burglary of a private residence and fixing the penalty much greater than that for ordinary burglary, did not intend that one could escape the consequences of the greater offense through an act of the proeeution in charging the lesser offense. At all events, whatever the reason, the law, as stated above has been long settled, and the facts in the present case demanded its application. In refusing to give it effect, the trial court fell into error requiring a reversal of the judgment, which is accordingly done. 
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