
    SNODGRASS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.)
    1. Burglary (§ 24) —Indictment— Sufficiency.
    An indictment for the burglary of a residence in the daytime need not allege whethei the burglary was committed in the daytime or in the nighttime, since, where a residence is burglariously entered in the daytime, the punishment is the same as for any other ordinary burglary, and it is only the burglary of a residence in the nighttime that is made a separate and distinct offense.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 34; Dec. Dig. § 24.]
    2. Burglary (§ 31)— Evidence — Other Offenses — Admissibility.
    Where, on a trial for burglary, the prosecutor testified that accused, when caught in the house burglarized, stated that he had just walked 30 miles, and was tired and hungry, and wanted something to eat, the testimony of witnesses that accused was in a store in the town in the forenoon of the day of the burglary in the afternoon, and that the witnesses fixed the date by stating that the store was burglarized that night, was admissible to prove the falsity of accused’s statements and to fix the time of his presence in the store, and, where the court so limited the testimony, accused could not complain on the ground that the testimony proved that he was guilty of burglarizing the store.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §| 43-47; Dec. Dig. § 31.]
    3. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence — “Burglary.”
    Where, on a trial for burglary, the prosecutor positively testified that accused was inside the house, and that he could not have entered without opening a door, and accused denied entering the house and testified that he only went on its steps, a charge that a burglary is committed by entering a house by force with intent to commit theft, and that the entry must be made with actual force, but that the slightest force is sufficient to constitute a breaking, such as the opening of a door that is shut, was not objectionable as on the weight of the testimony, but was a correct definition of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752,1768, 1770; Dec. Dig. §§ 763, 764.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 908-911; vol, 8, p. 7593.]
    4. Burglary (§ 46) — Evidence —Instructions.
    Where, on a trial for burglary, prosecutor testified that accused entered the house burglarized by opening a door, and that a gold scarf pin was lost the evening of the burglary, and accused denied entering the house, and the court charged that the jury must find that the entry was made with intent to steal, the refusal to charge on the issue of intent to steal conceived after entering into the house was proper.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    Appeal from District Court,' Comanche County; J. H. Arnold, Judge.
    Lewis Snodgrass was convicted of burglary, and he appeals.
    Affirmed.
    J. P. Graham and B. E. Cook,- for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cásea see same topic and section NUMBER in Dec. Dig. & -Am. Dig. Key No. Series & Rep'r Indexes,
    
   HARPER, J.

Appellant was convicted of burglarizing the house of ,E. T- Dabney, and prosecutes an appeal to this court.

The first complaint is that the court erred in not quashing the indictment, because it did not allege whether the burglary was committed in the daytime or nighttime. It has been held by this court that it would be the better practice to so allege, though such an allegation is not essential to its validity or sufficiency. Conoly v. State, 2 Tex. App. 412; Summers v. State, 9 Tex. App. 396; Gonzales v. State, 12 Tex. App. 657; Carr v. State, 19 Tex. App. 636, 53 Am. Rep. 395. And, where a private residence is burglariously entered in the daytime, the punishment is the same as for any other ordinary burglary. Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Williams v. State, 42 Tex. Cr. R. 606, 61 S. W. 395, 62 S. W. 1057. It is only the burglary of a private residence in the nighttime that is made a separate and distinct offense. In this case the entry, if made, was made in the daytime as shown by all the evidence.

Mr. Dabney testified that appellant entered his house in the afternoon, and, when he caught him in there, that appellant claimed he had just walked from Brownwood to Comanche and was tired and hungry, and wanted something to eat. Mr. Dabney says that evening there was stolen from his bedroom a gold scarf pin. The state proved these statements of appellant by Mr. Dabney, and then, to prove the falsity of the statement that he, appellant, had just walked from Brownwood (a distance of thirty miles) it introduced Henry Durham and others, and they testified that appellant was in Martin’s store in Comanche that morning about 10 o’clock, looking at some clothing, while the house of Dabney was entered about 4 o’clock that evening. In fixing the date they did so by saying that Martin’s store was burglarized that night. Appellant objected to this testimony on the ground that it had a tendency to prove that appellant was guilty of another and different offense. These bills as qualified by the court present no error, for the court makes it plain that the jury was informed that appellant was not being prosecuted in this or any other case for entering the Martin’s house. The court also instructed the jury in his charge not to consider any testimony relative to the burglary , of Martin’s house against this defendant. The testimony was admissible to show that the statement of appellant to Dabney why lie broke and entered his house was false. This court has held that where a statement of defendant is introduced by the state as evidence of his guilt, if.it includes exculpatory statements, the falsity of such statements must be proven, or they will be taken as true. Tlie court in his approval of the bill states that it was admitted solely for the purpose of fixing the time he was in. Martin’s store as the day on which Dabney’s house was burglarized, and that appellant’s statement about walking from Brownwood was false. This testimony was properly controlled in the charge. Wyatt v. State, 55 Tex. Cr. R. 74, 114 S. W. 812, and authorities there cited; Placker v. State, 58 Tex. Cr. R. 216, 125 S. W. 469.

The defendant, after the above testimony had been adduced, took the stand' in. his own behalf, and admitted he was in Comanche, and that the statement of his walking from Brownwood was false, but denied entering the house of Mr. Dabney. 1-Ie says he only went on the steps of the house, and not in the house. Mr. Dabney is positive he was inside of the house, and that the screens were closed, and he could not have entered without opening the door. The court charged the jury that the offense of burglary is committed by entering a house by force with the intent to commit theft, that “the entry must be made with actual force. The slightest force, however, is sufficient to constitute breaking, such as the opening of a door that is shut.” This was objected to as being upon the weight of the testimony. This was- but a definition of the offense, and is not subject to the criticism made.

He further instructed the jury that, they must believe beyond a reasonable doubt that the entry was made with the intent to-commit the specific crime of theft, and there-is nothing in the evidence to suggest that, if appellant did break and enter, the house, the-intent to steal was conceived after he entered the house, and the court did not err in. refusing the special charges raising this issue. Appellant denied entering the house. Dabney says he entered it by opening the-door, and a gold scarf pin was lost that evening. It is never error to refuse a charge on an issue not raised by the testimony. Defendant’s testimony was a positive denial' that he entered the house, and, under this, evidence, there was no affirmative defense to-present, nor suggestion that he entered the-house, if he did do so, for any other purpose than theft. If he had taken food, without the consent of the owner, it would have been, burglary.

We have carefully read and considered all-the grounds in the motion for new trial, and none of them present reversible error.

The judgment is affirmed.  