
    (86 Tex. Cr. R. 331)
    FREEMAN v. STATE.
    (No. 5478.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1919.)
    1. Burglary @=>26, 28(2) — Proof of theft UNDER INDICTMENT FOE ATTEMPT TO COMMIT BURGLARY.
    Under an indictment charging an attempt to enter a private residence with intent to commit the crime of theft, both allegation and proof of intent as to theft is -necessary.
    2. Burglary @=>41(10) — Evidence showing WANT OF CONSENT.
    Evidence that owner of residence, who died previous to trial of indictment charging attempt to enter private residence with intent to commit theft, was notified by his sister that a man was-on the porch trying to pry off a screen from window opposite her room, and that he called the police, is sufficient to show his want of consent.
    3. Burglary @=>41(10) — Evidence showing ATTEMPT TO ENTER RESIDENCE WITH INTENT TO COMMIT THEFT.
    Evidence that accused climbed the porch of a private residence, and while attempting to' pry off the screeh on a window the occupant of the room opposite screamed and " accused ran away, is not sufficient to convict under indictment charing, under Pen. Code 1911, art. 1305, an attempt to enter a private residence with intent to commit theft.
    Appeal from District Court, Galveston County; H. C. Hughes, Judge.
    George Freeman was convicted of attempt to commit burglary, and he appeals.
    Reversed, and cause remanded.
    Marsene Johnson, Elmo Johnson, Roy Johnson, and Marsene Johnson, Jr., all of Galveston, for appellant.
    C. H. Theobald, Co. Atty., and E. Spencer Stubbs, Asst. Co. Auy., both of Galveston, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of the offense of attempting to commit burglary. The indictment charges that the attempt was made to enter the private residence of W. Rowley with the intent to commit the crime of theft. These averments were necessary, and proof of them essential. Moore v. State, 37 S. W. 747; Fonvill v. State, 62 S. W. 573; Encyclopedia, Daw and Procedure, vol. 6, p. 216, subd. E, note 77.

Appellant’s connection with the offense was denied by him; and from the state’s evidence it appeared that in a private residence belonging to W. Rowley and his two sisters, and used by them as a place of residence, appellant climbed up on the porch at nighttime, and was in the act of trying to *open the window screen, which was right opposite the bed of one of the ladies occupying the room, when one of the women screamed, and the appellant jumped off of the porch and ran. The brother, W. Rowley, was notified, and he called the police, who arrested appellant later. W. Rowley was dead at the time of the trial, but we regard the circumstances proved as sufficient to show his want of consent. Franklin v. State, 53 Tex. Cr. R. 547, 110 S. W. 909; Jackson v. State, 49 Tex. Cr. R. 215, 91 S. W. 788.

The crime burglary of a private residence is in all cases to commit a felony or the crime of theft. Penal Code, art. 1305. In the instant case, there is no proof of the specific intent which actuated appellant in attempting to enter the house. The facts proved were sufficient to support the conclusion that he was endeavoring to enter for an unlawful purpose; but whether it was to commit the crime of theft, of some felony not charged in the indictment, there is a complete absence of evidence. The appellant’s place of business was in the vicinity, and he had had occasion to pass the premises and opportunity in that way to know something of the habits of the inmates. If it had been charged in the indictment that the attempt was made with the intent to commit the offense of rape, the evidence would have been quite as cogent, probably more cogent, to establish that intent than the intent to steal. The intent with which the attempt to enter was made cannot be presumed without sufficient facts to support it. Sedgwick v. State, 57 Tex. Cr. R. 420, 123 S. W. 702; Mitchell v. State, 33 Tex. Cr. R. 575, 28 S. W. 475. In the case of Moore v. State, 37 S. W. 747, the indictment charged the attempt to commit burglary in two counts; one wifh the intent to commit rape, the other with the intent to steal. From the remarks of the court in deciding the case, we quote the following:

“There certainly is no evidence in this case to indicate, even if we could concede, an attempt on his part to break and enter said building, as to the purpose he had in view when he did the same. As to this purpose, in order to sustain the conviction there should be no reasonable doubt as to whether he intended one or the other of the intents charged. The evidence should establish one or the other of such intents, beyond a reasonable doubt.”

Believing the evidence insufficient to sustain the conviction, the judgment is reversed, and the cause remanded. 
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