
    MILLER v. STATE.
    (No. 4317.)
    (Court of Criminal Appeals of Texas.
    May 16, 1917.)
    1. BURGLARY <&wkey;2S(5) — INDICTMENT—REQUISITES.
    Pen. Code, art. 1303, provides the offense of burglary is constituted by entering a house by force, or fraud at night, or by entering a house at any time, and remaining concealed therein, with the intent in either case of committing a felony. Article 1304 provides he is also guilty ■of burglary who, with intent to commit a felony or theft by breaking, enters a house in the daytime. Article 1305 provides that the offense of burglary of a private residence is constituted by entering a private residence by force or fraud .at night, or in any manner by entering a private residence at any time, and remaining concealed' therein until night, with the intent in either case of committing a felony. Article 1312 provides the punishment for burglary of a. private residence shall be by imprisonment in the penitentiary for any term of years not less than five. Article 1313 provides nothing in articles 1305 and 1312 shall be construed to alter or in .any manner repeal articles 1303 and 1304, nor any part thereof, but shall be construed to make burglary of a private residence at night a separate and distinct offense from burglary, as defined in articles 1303 and 1304. Held that, the statute with reference to burglary of a private house being independent and separate, the ordinary burglary indictment will not support a conviction for breaking a private residence, nor will an indictment .for breaking a private residence sustain a conviction for any other burglary.
    [Ed. ' Note. — For other cases, see Burglary, Cent. Dig. § 71.
    For other definitions, see Words and Phrases, First and Second Series, Burglary.],
    ■2. Criminal Law (&wkey;814(l) — Instructions— CoNEORMITY TO INDICTMENT.
    The charge of the court must follow the g.1legations in the indictment and submit only'for the consideration of the jury such allegations.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1980.] .
    3. Burglary <&wkey;28(3) — Indictment>-Re¡qui-SITES.
    Nighttime burglary of a private residence being a separate offense from’ other burglaries, an indictment must conform to the definition and charge a private residence burglary at night with a purpose or intent of committing a felony or theft, and shooting into a house to injure it does not charge a felony.
    [Ed. Note. — For other eases, see Burglary, Cent. Dig. § 69.]
    4. Burglary <&wkey;9(2) — Statutes—Construction.
    Pen. Code, art. 1307, defining “entry” as used in burglary, is not to be read into articles 1305, 1312, and 1313, as to burglary of a private residence.
    5. Burglary &wkey;>3 — Breaking oe Private Residence — Elements.
    Breaking a house for the purpose of engaging in a fist fight or committing a misdemeanor, except the crime of theft, would not be within the contemplation of the definition of burglary of a private residence at night.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 24-27.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Martin Miller was convicted of an offense, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Jos. V. .Ffnka, of Columbus, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment charges that appellant did unlawfully by force, and at night, discharge firearms, to wit, a gun, into the house of Walter Hill with the intent to injure him, the said Walter Hill, who was then and there in said house; the said house being then and there occupied and actually used by the said Walter Hill as a private residence, against the peace and dignity of the state.

It will be seen from the allegations that the pleader was undertaking to charge a violation of the statute which prohibits burglary at night of a private residence.

The statute provides that the punishment for this offense shall not be less than five years, fixing no maximum. The indictment is assailed in various ways, but substantially that it does not charge the elements of burglary of a private residence. Article 1305, Revised Penal Code, reads as follows:

“The offense of burglary of a private residence is constituted by entering a private residence by force, threats or fraud, at night, or in any manner by entering a private residence at any time, either day or night, and remaining! concealed- therein until night, with the intent, in either case, of Committing a felony, or the crime of theft.”

It will be noticed this statute limits the offense intended to be committed to a felony or theft.

Article 1313 of the Penal Code provides:

“Nothing in articles 1305 and 1312 shall be construed to alter or in any manner repeal articles 1303 and 1304, nor any part thereof, but shall be construed to make burglary of a private residence at night a separate and distinct offense from burglary, as defined in articles 1303 and, 1304.”

Article 1303 punishes burglary when committed by entering a house by force, threats, or fraud at night, or by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or .the crime of theft.

Article 1304 punishes a daytime burglary by breaking with intent to commit a felony or theft.

So it will be seen that the statute with reference to burglary of a private house is an independent and separate offense from any other burglary. Branch, Crim. Law, § 159. The ordinary burglary indictment will not support a conviction for breaking a private residence, nor will an indictment for breaking a private residence sustain a conviction for any other burglary, either day or night, and this by express terms of the statute. The definition of a private residence is set out in article 1314 of the Penal Code. The decisions hold that daytime burglary of a private residence is not affected by the act of June 5, 1899, relating to burglary of a private residence at night, but is left as an offense under the old statute defining burglary of a house. Branch, Crim. Law, § 159. These cases are collated also by Mr. Branch in his valuable Annotated Penal Code, on page 1289 and section 2354. It is also held that, where a private residence is burglarized in the daytime, it is an ordinary burglary, and punishment therefor is the same as for ordinary burglary. These cases are collated in the same section; and it is also the law that burglary of a private residence at night is a separate and distinct offense from the burglary at night of a house other than a private residence as defined by article 1303 of the Penal Code, and is a separate and distinct offense from burglary committed in the daytime by breaking and entering a house, whether a private residence or not, as defined by article 1304 of the Penal Code. Sustaining this, Mr. Branch, in the same note, has collated a great number of authorities. It was also held in Jones v. State, 47 Tex. Cr. R. 128, 80 S. W. 530, 122 Am. St. Rep. 680, and Martinus v. State, 47 Tex. Cr. R. 528, 84 S. W. 831, 122 Am. St. Rep. 709, that where the proof shows, without controversy, burglary of a private residence at night, a conviction for ordinary burglary will be set aside; the two offenses being separate and distinct. It was also held in the Jones Case, supra, and Rodgers v. State, 59 Tex. Cr. R. 146, 127 S. W. 834, that, where the proof shows there was a burglary of a private residence at night, the court should not charge ordinary burglary. Of course, the charge of the court must follow the allegations in the indictment, and submit only for the consideration of the jury such allegations.

We are cited to the cases of Garner v. State, 31 Tex. Cr. R. 22, 19 S. W. 333; Rail-ey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576; Windham v. State, 59 Tex. Cr. R. 369, 128 S. W. 1130; and Gradington v. State, 69 Tex. Cr. R. 595, 155 S. W. 210-in support of the sufficiency of the indictment and the ruling of the court in sustaining it. All of these cases, except Railey v. State, charged that the burglary was committed with the intent to commit a felony, but none except the Windham Case were charged as private residences. The Wind-ham Case was burglary of a private residence at night with the intent to commit murder, which was a felony. The Railey Case was a burglary under the daytime statute, and he was charged with shooting into a house with intent to injure; the other cases with intent to commit a felony. The Rail-ey Case, supra, is not in point in this ease under terms of the statute. It alleged a daytime burglary — not a nighttime burglary of a private residence. The statute makes these distinct and different offenses, and the decisions all hold that a conviction for daytime burglary cannot be had under an indictment charging a nighttime private residence burglary, and vice versa. So the Railey Case is not authority here. The Railey Case holds that article 841 was “but an addition to articles 838 and 839,” and thereby read article 841 into articles 838 and 839. A private residence night burglary, is an entirely new and distinct offense, and old articles 838 and 839 (now 1303 and 1304) should not be read into these articles creating night burglary of the residence. They have no application to night burglary of a private residence.

If the statute is upheld as the language imports, then, a nighttime burglary of a private residence being a distinct and separate offense from other burglaries, the allegations must conform to the definition, and in order to do so it must charge a private residence burglary at night with the purpose or intent of committing a felony or theft. Shooting into a house to injure does not charge a felony. If the proposition is to be maintained correctly under the language of intent to injure, then any shooting into a private residence at night would be a violation of the burglary law, the other ingredients being present, whether it was a felony or not. The writer has never so understood the law to be, not even under the opinion in Railey v. State, supra. Inasmuch as the statute defining burglary of a private residence limits it to nighttime and the intent to commit a felony or the crime of theft, it occurs to the writer that under that statute in order to constitute this offense the indictment must charge nighttime burglary for the purpose of committing some felony or theft. It would not do to say, under that statute, that to commit a misdemeanor would be a violation of that statute, unless it be theft.

Article 841, now 1307, is not a part of nor to be read into article S39a, now 1305, and articles , 1312 and 1313. Breaking a house for the purpose of engaging in a fist fight or committing a misdemeanor, except the crime of theft, would not be within the contemplation of the definition of burglary of a private residence at night. There must be the purpose to commit a felony or the crime of theft. Therefore it occurs to the writer that this indictment does not charge a burglary under the private residence statute, and the motion should have been sustained, and the indictment quashed. •

The judgment therefore will be reversed, and the prosecution ordered dismissed. 
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