
    LANDRY v. STATE.
    (No. 8106.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1924.)
    1. Criminal law <S=369(7) — Witnesses <®=»337' (6) — Proof that defendant, tried for burglary, had been convicted'of carrying pistol, held inadmissible.
    In a prosecution for- burglary, evidence that defendant had been convicted of carrying a pistol held not legitimate to impeach defendant, but to .be in violation of the rule forbidding the use of extraneous crimes in proof.
    2. Criminal law t§=>7l9(i), 730(7) — Argument by state’s counsel held erroneous as not based on evidence, and not cured by cautionary instruction.
    In a prosecution for burglary, where it appeared that 19 chickens belonging to prosecuting witness were found in defendant’s possession a statement by the state’s counsel in his argument as a fact, and as evidence of defendant’s guilt, that there were 42 chickens lost in the town where the offense was committed on the night of defendant’s arrest, and that 42 chickens were taken out of defendant’s truck at the time of his arrest, held prejudicial error, no proof thereof having been made, notwithstanding a cautionary instruction.
    3. Burglary <S=a28(3) — Proof of breaking held essential to sustain conviction under indictment charging breaking-.
    In a prosecution for burglary, where the indictment charged that defendant “did unlawfully and fraudulently break and enter a house,” an instruction that by the term “entry” was meant any kind of entry without the free consent of the occupant, and that it was not necessary that there should be an actual breaking, held erroneous; proof of the-breaking being essential to sustain conviction.
    4. Burglary <©=9 (I) — Unfastening wire holding door held sufficient “breaking.” .
    In a prosecution for burglary by entering a garage and stealing property therefrom, where it appeared that the door was fastened by a wire, a “breaking” would be shown by evidence that defendant unfastened the wire so that the door might .be opened.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Breaking (In Criminal Law).]
    Appeal from District Court, Liberty County; J. M. Combs, Judge.
    G. A. Landry was convicted of burglary, and be appeals.
    Reversed and remanded.
    Howth & O’Fiel, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   MORROW, P. J.

The appeal is from a conviction for the offense of burglary; punishment assessed at confinement in the penitentiary for a period of two years.

At the home of Dr. Tadlock, in the village of Dayton, he owned a garage and a chicken house. The garage was divided into three compiartments. In the one in the center the car of the doctor’s wife was kept. On the night of September 27th the doctor, hearing a disturbance among his chickens, went into the yard and observed something or some one run out of the chicken house. He heard the sound of an .automobile engine on the road near by. He-fired his pistol, and with the officer Lacy, in an automobile, overtook the party who was driving a truck. Lacy-got out of the doctor’s car and got'on the running board of the truck, but he immediately got off, though he did not testify to his reason for doing so. Officers at another town were notified over the telephone, and they intercepted the truck, which was driven by the appellant. On the following morning, Dr. Tadlock noticed that the door of the garage was open, and from it he. missed a pair of gloves and a tube for an automobile casing. There was no lock on the door, but a wire twisted around a staple was used for fastening the door. According to his recollection, the door had been fastened on the previous night. Lacy did not testify on the trial. In the car when the arrest was finally ipade was a pair of gloves. The sheriff took possession of the car containing the gloves. One of the gloves, according to his testimony, had disappeared. The other was exhibited on' the trial, and identified by Dr. Tadlock as one which belonged to him, and which had been in the garage on the day before the occurrence mentioned. In the -appellant’s car were also found some chickens, 19 of which- were identified by Dr. Tadlock as belonging to him. What number of chickens were in the coops in the car was not disclosed by the evidence. The witness stated he did not know the number.

Appellant testified that the gloves found in his possession belonged to him, and produced testimony of a merchant to the effect that he (appellant) had bought the gloves from him. Appellant also testified that he had bought the chickens in the neighborhood of the city of Houston, and introduced two witnesses, in support of this theory. He explained his effort to evade the officers and the refusal to stop at their command by the statement that he did not know that they were officers, and that since it was in the nighttime he was in fear of being robbed.

The state, over the appellant’s objection, proved that he had been convicted of the offense of carrying a pistol upon the occasion in question. No pistol was found in his possession at the time of the arrest or seen in his possession at any time during the episode, though the circumstance described by Dr. Tadlock in which Lacy, after getting on the running board of the -appellant’s car, immediately got off of it, the appellant at the time having something in his hand, was doubtless a circumstance relied upon by the state to prove that the appellant had a pistol at the time, and exhibited it. The proof that he had and exhibited a pistol would have been admissible, but proof that he had been convicted of carrying a pistol was not legitimate proof, and its introduction was a violation of the rule forbidding the use of extraneous crimes. It was admissible under none of the exceptions to this rule. It was not legitimate impeaching^ testimony, for the reason that carrying a pistol is not an offense involving moral turpitude.

The home of Dr. Tadlock was situated in the village of Dayton. State’s counsel in his' argument stated to the jury as a fact and as evidence of appellant’s guilt that there were 42 chickens lost in the town of Dayton on the night of the appellant’s arrest, and that there were 42 chickens taken out of the appellant’s truck at the time of ,his arrest. If this had been proved upon the trial, it would have been cogent testimony to identify the appellant as the person who entered the chicken house of Dr. Tadlock, and to identify the appellant as the person who committed the burglary. It was affirmatively shown by the statement of facts and bills of exceptions that no such proof was made upon the trial. It was a material fact, but not one which the state’s attorney was authorized to bring into the case upon his own statement during the argument. The learned trial judge, recognizing this, instructed the jury that the remark was not to be considered. The county attorney also apologized for having made a statement which was not authorized by the record. However, the statement made was before the jury. What use was made of it cannot be determined, but that it may have been to the detriment of the accused is obvious from the record. His possession of the chickens was explained by his testimony and by that of his witnesses in a manner consistent with his innocence, namely, that he had brought them with him from Houston, and that in passing through Dayton he was attacked by Daey, and resisted the attack because he believed that it was an attempt to rob him. The statement of the county attorney to the effect that 42 chickens were stolen in Dayton and that 42 chickens were found in the possession of the appellant was calculated to discredit the appellant’s defense. See Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120.

It was charged in the indictment that the appellant “did unlawfully and fraudulently break and enter a house.” In this averment the offense of burglary by breaking was charged. There was no averment that the burglary took place at night. In his charge the court instructed the jury that by the term “entry” was meant any kind of entry without the free consent of the occupant, and that it was not necessary that there should be an actual breaking. In submitting the matter for a finding, the court instructed the jury that, if they believed from the evidence, beyond a reasonable doubt that the appellant “by force entered the ¡house of Tadlock,” etc. Taking into account the averment in the indictment, as well as the definition of the offense, the charge is subject to the criticism urged against it. Proof of a breaking by the appellant was essential to sustain the conviction. The evidence on the subject of breaking .was circumstantial. In fact, all of the evidence of guilt was circumstantial. If th'e door was fastened with the wire as described by the state’s witness, and the wire was unfastened by the appellant so that the door might be opened, this would satisfy the law as to breaking. The evidence on the subject was not such as would dispense with the necessity of instructing the jury that to constitute an offense there must be a breaking. Bates v. State, 50 Tex. Cr. R. 568, 99 S. W. 551; Newman v. State, 55 Tex. Cr. R. 273, 116 S. W. 577; Crane v. State, 91 Tex. Cr. R. 304, 240 S. W. 922.

The judgment is reversed, and the cause remanded. 
      
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