
    CREWS v. STATE.
    (No. 11775.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    1. Burglary <§=^9‘(3) — Entry without consent of owner of house does not necessarily constitute “burglary”; breaking being essential (Pen. Code 1925, art. 1390).
    Not every entry made without free consent of owner of house constitutes burglarious entry, breaking being required, under Pen. Code 1895, art. 839 (Pen. Code 1925, art. 1390), for burglary committed in the daytime.
    [Ed. Note. — For other definitions,' see Words and Phrases, First and Second Series, Burglary.]
    2. Burglary <⅜=046(3)— Charge that actual breaking was unnecessary to constitute burglary held error, where evidence failed to show door of ginhouse was closed at time of defendant’s alleged entry (Pen. Code 1925, art. 1390).
    In prosecution for breaking and entering into house with intent to commit theft, in which it did not clearly appear that door of ginhouse alleged to have been entered was closed, charge that “entry” means every kind of entry except one made with consent of occupant and that actual breaking is not necessary to constitute burglary held error, under Pen. Code 1895, art. 839 (Pen. Code 1925, art. 1390).
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; R. T. Brown, Judge.
    Dan Crews was convicted of burglary, and he appeals.
    Reversed and remanded.
    E. J. McLeroy, of Center, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement- in the penitentiary for two years.

It was charged in the indictment that appellant committed the offense in the daytime by force, threats, and fraud, and that he “did break and enter” the house with the intent to commit the offense of theft. Among other things, the court instructed the jury as follows :

“By the term ‘entry into a house’ is meant e.very kind of entry except one made by the free consent of the occupant, or of one authorized to give such consent. It is not necessary that there shall be any actual breaking to constitute burglary.”

The term “breaking” was nowhere defined in the charge.

Timely exception was reserved to the charge above quoted. It is noted that the record reflects the fact that no witness was able t.o testify that the door of the ginhouse, which was alleged to have been burglarized, was closed at the time the entry was effected. • Appellant and a companion were seen in the vicinity of the gin. Later one of the parties was seen-coming out of the building. This occurred in the daytime. A few days later property of the value of approximately $9 was found at the home of appellants mother and identified ■ by the owner of the gin as belonging to him. Witnesses for the state testified that they did not know whether or not the door of the gin-house was open at the time of the entry. The only circumstance which would indicate that it was closed arises from the testimony of the injured party. He stated:

“The entrance was through a door, on which I had a fastening. That fastening was one of these slide hasps — two of them on the door-but the hinge on the door was loose at the door facing on the bottom, so that you could push the door out at the bottom and it would spring back again.”

This witness was in Dallas at the time his house was entered. He did not state that the door was closed when he left his place of business. We quote from his testimony, as follows:

“I do not know who got my stuff, nor do I know whether or not the door was shut at the time whoever got it went in.”

Thus it is seen that the evidence touching the character of entry effected by the parties is meager. In view of such fact, the charge complained of constituted reversible error. The jury were, in effect, advised by said charge that appellant would be guilty of burglary if he entered the house of the owner without his consent. Every kind of entry except one made by free consent of the owner or one authorized to give such consent would not he necessarily a burglarious entry. The charge under consideration has been held by this court in a number of cases to be error. We quote the language of Judge Davidson in the case of Bates v. State, 50 Tex. Cr. R. 568, 99 S. W. 551:

“Now, in view of this testimony, the evidence would indicate, if a breaking at. all, it was a breaking in the daytime; therefore, it was necessary, under article 839, Pen. Code 1895 [now article 1390, P. C.], for the court to have charged with reference to an actual breaking. In any event, whether night or day breaking, ■the entry must be accomplished by breaking, and, if accomplished in the daytime by breaking externally, then it must be.an actual breaking. Under the charge .above quoted it was only necessary for the. jury to believe that, if appellant entered the house without the consent of the occupant, it would be burglary.”

See Weatherred v. State, 101 Tex. Cr. R. 520, 276 S. W. 437; Crane v. State, 91 Tex. Cr. R. 304, 240 S. W. 920; Miller v. State, 80 Tex. Cr. R. 226, 189 S. W. 259.

For the error discussed, 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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