
    BLACK v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.
    On Motion for Rehearing, April 15, 1914.)
    1. Ckiminal Law (§ 982) — Suspension on? Sentence — Question foe Juey — Statutory Provisions.
    The act providing for the suspension of sentence does not apply to burglary, and, on a trial for burglary, it is not error to refuse to submit to the jury the question of suspension of sentence, in case of a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    2. Criminal Law (§ 1159) — Evidence—Instructions.
    Where, on a trial for burglary, the undisputed evidence showed that accused entered', in the nighttime, the private residence of prosecutor, and that, ■ if accused intended .to steal, he was detected and arrested before accomplishing that purpose, and accused proved that he was so intoxicated that he did not know what he was doing, and the court charged that, if accused was so intoxicated that he did not have sufficient mind to form an intent, he must be acquitted, and that, before conviction, the jury must find that he entered with the intent to steal, a conviction will not be disturbed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074r-3083>; Dec. Dig. §- 1159.]
    On Motion for Rehearing.
    3. Burglary (§ 41) — Evidence — Sufficiency.
    Where one at night, by stealth, enters the private residence of another, with no right to do so or legal excuse, the evidence of intent to steal, sufficient to support a conviction for burglary, may be slight and circumstantial, in the absence of anything to indicate that the entry was made with any other intent.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-10-3, 109; Dec. Dig. § 41.]
    Appeal from -District Court, Houston County; John S. Prince, Judge.
    Handy Black was convicted of burglary, and be appeals.
    Affirmed.
    
      Madden & Denny, of Crockett, for appellant. O. 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.

Appellant was prosecuted and convicted of burglary, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant filed a written reguest that the court submit to the jury the question of suspension of his sentence in case he was found guilty. Appellant was charged with burglary of a private residence at night, and convicted of that offense. By the terms of the suspended act he was not entitled to have that question submitted to the jury, for it provides that the law shall not apply to that character of offense; therefore the court did not err in refusing to submit that issue to the jury.

The evidence clearly shows that appellant entered the private residence of W. D. Granbury in the nighttime, for he was detected by Mr. Granbury and arrested by him. He does not deny this fact, but says he was so drunk he did not know what he was doing, and he introduced several witnesses to prove that he was so intoxicated that he did not know what he was doing. However, Mr. Granbury and Mr. Leaverton testify that, while appellant was drinking, he had not reached that state of intoxication which rendered him incapable of knowing what he was doing, thus making that an issue of fact. The charge was that he entered this house with the intent to commit the crime of theft. If he intended to steal, he was detected before accomplishing that purpose and arrested. The court, among other things, instructed the jury: “If you believe ■from the evidence that the defendant’s mind was so much affected by drink as to make him incapable of forming an intent when he entered the house, if he did enter the house, and that when he so entered the house, if he did, he did not at the time of such entry, if any, have sufficient mind or discretion to form an intent, then you will acquit the defendant.” He instructed them also that, before they would be authorized to convict, they must believe beyond a reasonable doubt ' he entered the house with the intent to commit the crime of theft. The jury finds adversely to appellant’s contention, and we do not feel authorized to disturb their verdict.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing, insisting that the indictment charged that he broke and entered the house with the intent to steal, and, as at the time he was detected he had stolen nothing, the evidence is insufficient. The evidence discloses that the kitchen door was broken in law, tbe door being opened and an entry made therein, his tracks being found inside the kitchen, although he was on the gallery when Mr. Granbury found him. But prior to this time appellant had been heard making a noise in the kitchen or in opening the door of the kitchen. The fact that he had not, when detected, in fact stolen anything would not entitle him to an acquittal, for when one at night, by stealth, enters the private residence of another, with no right to do so and no legal excuse for so doing, the evidence of intent to steal may be slight and circumstantial, if there is nothing to indicate that the entry was made with any other intent. Alexander v. State, SI Tex. Cr. R. 362, 20 S. W. 756; Mullens v. State, 35 Tex. Or. R. 149, 32 S. W. 691; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406.

The motion for rehearing is overruled.  