
    GARCIA v. STATE.
    (No. 11168.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    I. Burglary <§=>28(6)— Proof that burglarized residence was owned by husband and occupied by husband and wife failed to correspond with allegation that defendant entered residence of wife.
    Proof that burglarized-residence was occupied at time of burglary by Mrs. S. and her husband and that house belonged to her husband and that he had care, control and management of house failed to correspond with allegation of indictment charging that defendant entered private residence of Mrs. S. at night by force, threats, and fraud, with intent to commit theft.
    2. Burglary <@=o22 — Indictment for burglary in house owned by husband should have charged his occupancy and. ownership instead of wife's.
    Where burglarized residence was occupied at time of burglary by husband and wife and house belonged to husband, indictment charging burglary should have charged occupancy and ownership in husband instead of in wife.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Cameron County; A. W. Cunningham, Judge.
    Teodoro Garciá, alias -Lolo Garcia, was convicted of burglary of a private residence at night, and he appeals.
    Reversed and remanded.
    Fausto Xturria and Noble G. Cofer, both of Brownsville, for appellant.-
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary of a private residence at night; the punishment, confinement in the penitentiary for five years.

The indictment charges that appellant entered the private residence of Mrs. J. C. Snyder at night by force, threats, and fraud, with the intent to commit the offense of theft.

The sufficiency of the evidence is challenged. It was undisputed that the burglarized residence was occupied, at the time of the burglary, by Mrs. J. C. Snyder and her husband, Albert Snyder. Mrs. Snyder testified that the house belonged to her husband; that he was the head of the family, and had the care, control, and management of the house.

The proof fails to correspond with the allegation of occupancy and ownership. The indictment should have charged occupancy and ownership in the husband. In the ease of Hall v. State, 105 Tex. Cr. R. 216, 287 S. W. 244, the rule is stated as follows:

“The statute requires that the owner or possessor of the property be named in the indictment, and, where property is in joint possession of the.husband and wife, living together and occupying, the same premises, the husband should be named as the possessor and owner.”

There are circumstances under which it is proper to charge the ownership in the wife. The facts of the present case, however, do not bring it within any of the exceptions. See Peoples v. State, 90 Tex. Or. R. 236, 234 S. W. 394, an authorities there cited.

We do not deem it necessary to discuss the other matters complained of by appellant.

Because the proof fails to correspond with the allegation, the judgment is reversed and the cause remanded.

. PER CURIAM. 'The foregoing opinion of the Commission of Appeals' has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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