
    FOX v. STATE.
    (Court of Criminal Appeals of Texas.
    May 24, 1911.
    Second Rehearing Denied June 21, 1911.)
    1.Criminal Daw (§ 603) — Continuance-Absence of Witnesses — Diligence.
    An application for continuance to which no process is attached, and in which it is alleged that the subpcena had been applied for on October 3d, when the case had been set for trial on the 4th with no reason assigned why it had not been issued before that date, does not show any diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1359, 1360; Dec. Dig. 603.]
    2.Indictment and Information (§ 132)— Election Between Counts — Burglary.
    There was no error in refusing to require the state to elect whether it would prosecute on a count for daylight burglary or on one for nighttime burglary.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-453; Dec. Dig. § 132.]
    3. Criminal Law (§ 829) — 1Trial—Instruc-tions — Requests—Instructions Already Given.
    There was no error in refusing special instructions sufficiently given in the main charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    4. Criminal Law (§ 1172) — Appeal—Harmless Error — Instruction.
    A count of an indictment charging a daytime burglary did not allege that it was a private residence, but simply charged a burglarious entry of a house belonging to G. with intent to commit theft. A count charging a nighttime burglary alleged that it was a private residence occupied by G. and. his family. Pen. Code 1895, art. 839, provides that he is guilty of burglary, who, with intent to commit a felony or theft by breaking, enters a house in the daytime. A charge authorized a conviction on proof of an entry and remaining concealed therein, which state of facts was not pleaded in the indictment The conviction was under the count for daytime burglary. Held, that the error in the charge cannot be complained of by the defendant, since it could not have induced the jury to return a verdict of guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3161; Dec. Dig. § 1172.]
    5. Criminal Law (§ 1172) — Appeal—Harmless Errort — Instruction.
    A charge that if the jury believed beyond a reasonable doubt that defendant was guilty of burglary, but had a reasonable doubt as to whether it was committed in the daytime or nighttime, they would not convict her of nighttime burglary, but find her guilty under the count for daytime burglary, was beneficial to defendant, and did not call for a reversal under White’s Ann.. Code Or. Proc. art. 723, providing that the judgment shall not be reversed for error in the charge, unless it was calculated to injure the rights of the defendant.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. § 3160; Dee. Dig. § 1172.]
    On motion for rehearing.
    Motion granted, former opinion overruled, and judgment affirmed.
    For former opinion, see 135 S. W. 570.
    F. G. Moffett, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

At a former day of this term the judgment herein was reversed on account of a defect in the indictment copied in the transcript, under which appellant was convicted. 135 S. W. 570.

The Assistant Attorney General has filed a motion for a rehearing, alleging that the transcript in this case on appeal to this court is defective and imperfect in the following particulars: The indictment in this ease as the same appears copied in said transcript does not contain an allegation that the stolen goods were taken without the consent of the owner, and only alleges, as shown in said transcript, that the appellant, Alice Fox, did break and enter the house “with the fraudulent intent of her, the said Alice Fox, to take from said house corporeal property therein being and belonging to the said George Green, the owner of said property, of the value thereof, and to appropriate the same to the use and benefit of her, the said Alice Fox,” whereas, in truth and in fact, the indictment filed in the court below on the 29th day of September, 1910, and upon which a conviction in this case was had, contains, omitting formal parts, the following averments: That Alice Fox “did then and there unlawfully and in the daytime, by force, threats, and fraud, fraudulently and burglariously break and enter the house occupied by George Green without the consent of the said George Green and with the fraudulent intent of her, the said Alice Fox, to take from said house corporeal personal property therein being and belonging to the said George Green, from the possession of the said George Green, without his consent, and with intent to deprive the said George Green, the owner of said property, of the value thereof and to appropriate the same to the use and benefit of her, the said Alice Fox, * * * against the peace and dignity of the state.” To this is attached the original indictment as an exhibit, properly verified. In accordance with said prayer, and it appearing that the original indictment is valid, the judgment reversing this case is overruled, and we will consider this case on its merits.

The application of the defendant for a continuance does not show any diligence. No process is attached to the application, and the allegation in the application being that the subpcena had been applied for on the 3d of October, when the case had been set for trial on the 4th, with no reason assigned why it had not been issued before that date, does not show any diligence whatever. In addition thereto, the facts she alleges she expects to prove by said witness are not probably true, for she was found in possession of a portion of the stolen property, and paid $8 to the prosecuting witness for the part she did not still have in her possession.

There were two counts in the indictment, one alleging daylight and the other nighttime burglary. The court did not err in refusing to require the state to elect on which count it would prosecute.

There was no error in refusing to give the special instructions requested. Two of them were given sufficiently in the main charge, and the third, a peremptory charge, should not have been given. .

There are several complaints as to the charge of the court. As before stated, the indictment contained two separate and distinct counts, one alleging daytime and the other nighttime burglary. The count charging a daytime burglary does not allege that it was a private residence, but simply charges a burglarious entry of a house belonging to George Green with the intent to commit theft. The count charging a nighttime burglary alleges that it was a private residence occupied by George Green and his family. Burglarious entry of a private residence under given conditions is defined by article 839, Pen. Code 1895. Had appellant been convicted under this count in the indictment, the criticism of the charge would be well tafeen, in that the charge would authorize a conviction under a given state of facts not plead in the indictment; that is, an entry and remaining concealed therein. But the jury having found the defendant guilty under the first count in the indictment, these errors cannot be complained of by the defendant, for they in no sense' could have induced or been instrumental in causing the jury to return a verdict of guilty.

The court apparently toofe articles 838, 839, and 839a to be degrees of the same offense and not separate and distinct offenses, and charged the jury that, if they believed beyond a reasonable doubt that defendant was guilty of burglary but had a reasonable doubt as to whether the burglary was committed in the daytime or nighttime, they would not convict her of nighttime burglary, but find her guilty under the first count. Appellant complains of this paragraph of the charge. The error was beneficial to the defendant, and we cannot see in what way she was injured. The court instructed the jury that if they believed beyond a reasonable doubt that she was guilty of burglary as defined in the charge, if they had any doubt as between the two counts, to find her guilty only of the count in which the lesser penalty is as fixed by law, and they give her the lowest penalty. As before stated, she was found in possession of the stolen goods, and admitted she had broken into the house. Under this state of facts we do not think such error was committed as should call for a reversal of this case. See article 723 of the Code of Criminal Procedure, and authorities thereunder cited in White’s Procedure.

The motion for rehearing is granted, and the judgment is now affirmed.  