
    NALLS v. STATE.
    (No. 5403.)
    (Court of Criminal Appeals of Texas.
    March 10, 1920.)
    1. BurgxaRY <&wkey;9(2) — Shooting through DOOR BY PEACE OFFICER WITHOUT INTENT TO COMMIT FELONY NOT “ENTRY.”
    Where police officers, believing gambling to be going on behind a closed door, attempted to enter, and the hand of one was caught in the door, and was struck at by one inside the door, and he thereupon fired a shot through the door angling toward the floor, there was no burglary; for to constitute “entry” one shooting through a door must intend to commit a felony or theft, under Pen. Code 1911, arts. 1304, 1307.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Entry.]
    2. Burglary <&wkey;9(2) — Statute providing THAT FIRING THROUGH DOOR MAY CONSTITUTE ENTRY DID NOT CREATE NEW OFFENSE.
    Pen. Code 1911, art. 1307, declaring that entry made by the discharge of weapons into a house with intent to injure any person therein, does not create a new offense or change the definition of the offense of burglary, but simply extends the enumeration of the manner of “entry.”
    3. Homicide &wkey;>340(l) — Erroneous charge NOT HARMLESS WHERE PUNISHMENT EXCEEDED MINIMUM.
    An erroneous charge in a prosecution for manslaughter could not have been harmless, assuming defendant to be guilty of manslaughter, where the punishment assessed exceeded the minimum.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    Berry Nalls was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    H. P. Brelsford, of Eastland, Walter L. Morris, of Albany, and Davenport & Allen and C. R. Fields, all of Ranger, for appellant.
    J. H. Beavers, of Winnsboro, and Alvin M. Owsléy, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant, was convicted of manslaughter, and his punishment fixed at three years’ confinement in the penitentiary.

The deceased, Richburg, and the witness McGill were partners in the mercantile business, and occupied a small wooden building about 24 feet long with a partition about the center of it, using the front end for business purposes and the back end for living purposes. The deceased and McGill were on the night of the homicide in the back room of the building counting the day’s sales. They had a box sitting on the floor between them, and money, both paper and silver, on the box. The occurrence was in the town of Ranger, which had, by reason of the discovery of oil, attracted a large population within a short time, and had grown from a village to a city, and the adjutant general of the state had assigned the appellant and one Bloxon, who were State Rangers, to aid the local officers in preserving the peace. The State Rangers were invested by law with the authority of peace officers; and the appellant and his companion, it is claimed, believing that there was gambling going on in the room mentioned, undertook an investigation, in the course of which appellant looked through the keyhole and heard money rattling and a mumbling, though he could not understand what was said. Bloxon, after looking through a crack in the wall, said to appellant, “They are gambling,” and at the same time Bloxon put his hand against the bottom of the door, and began to ease it open; at least such is the testimony from the appellant’s standpoint. When he had pushed the bottom of the door in about eight inches or a foot the door was pushed' back, catching the arm of Bloxon between the door and the frame. Bloxon called to the parties to open the door, stating that they were Rangers, and, failing to extricate his right hand, which was held in the door, he drew his pistol with his left hand and fired through the door, the bullet striking the floor a short distance from the door on the inside of the building. Immediately after the shot was fired the door flew open, according to appellant and Bloxon, and Bloxon entered, and some one struck him with a chair, and he fell on the bed. Seeing one of the parties in the act of striking Bloxon again with the chair, the appellant entered, drew his gun, and fired, and just after he fired he saw Mc-Gill going out the side door. The parties were all strangers to each other.

As described by McGill, who was inside of the house, when the door was sprung in and he saw the hand he asked what was wanted, and received the reply, “We are coming in there.” He then kicked the hand, and it was jerked back and a shot fired through the door which angled down to the floor. He seized a plank about seven feet long, and stepped back, and a hand with a gun in it was pushed through the door, and he struck at the hand with the plank. When this was done the door flew open, and the parties came in, and as they came in a shot was fired. The witness ran to a side door, noticing the deceased in a corner of the room exhibiting no arms. When he returned a few moments later Richburg was dead, and the appellant said, “I am the man who did it.”

In an elaborate charge the court instructed upon the law of murder, manslaughter, and self-defense, also on the law of principals, the right to arrest, and embraced in his charge the following:

“Burglary, in so far as it concerns this case, may be constituted by the discharge of firearms or other missile into the house with intent to injure any person therein, and is a felony ”

—proceeding upon the theory that, if Blox-on fired into the house through the door with intent to injure some one, he would be guilty of burglary, and that appellant, being present and knowing his unlawful intent, aiding or encouraging him, would also be guilty of burglary, and thereby forfeit the right of self-defense. The facts were such as to authorize the trial court to qualify the right of self-defense by an appropriate charge, but in instructing the jury concerning the law of burglary the court, in our opinion, was dealing with a matter not raised by the evidence, and one likely to seriously injure the appellant. Under our statute it is essential in every case of burglary that the entry be made with the intent to commit a felony or the crime of theft. This is the express language of the statute defining burglary. P. O. art. 1304. We think there is no evidence which suggests that the breaking in the present instance was with such intent. The appellant and his companion, according to the entire record, were not actuated by any malice towards the deceased or his companion. They were strangers. Their action in approaching the house' and in pushing in the bottom of the door was due to their zeal in enforcing the law against gambling. That they were mistaken both as to the fact that an offense was committed by the occupants of the room and as to the extent to which they might lawfully go in investigating it of in bringing about ,an arrest may be conceded. Still there is nothing that suggests that their purpose was to commit crime or theft, and the evidence of both the state and the appellant tends to show that at the time that Bloxon fired through the door his hand was imprisoned, and he was the subject of attack. The shot was fired in a manner to go angling down to the floor; and, if it was fired for the purpose of injuring those within the house, it could not have been burglary, unless there existed also the intent to commit a felony.

It is true that the statute (article 1307) declares that'the entry may be made by the discharge of firearms into a house with intent to injure any person therein. The intent being present, this entry would bring the persons committing it within the law of burglary in the event that the injury intended was a felony, and not otherwise. Article 1307 does not create a new offense or change the definition of the offense of burglary, but simply extends the enumeration of the maimer of “entry.” Miller v. State, 81 Tex. Cr. R. 237, 195 S. W. 192, in which Railey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576, is modified.

The charge referring to the offense of burglary, therefore, in our judgment, was wrong in form and in substance. Even if the conduct of the appellant in the inception of the trouble was such as to deprive him of the right of perfect self-defense, the charge, putting into the case the question of burglary, cannot be held harmless because the punishment assessed exceeded the minimum.

Several of the other questions discussed in appellant’s brief are not properly raised, and still others are such as are not likely to arise upon another trial.

Because of the error pointed out, the judgment is reversed, and the cause remanded. 
      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     