
    MORAY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 15, 1911.)
    1. Burglary (§ 46) — Evidence — Instructions.
    Where, on a trial for burglary, the state relied on the fact that a ring taken from accused several months after the burglary belonged to the wife of the owner of the house burglarized, and accused proved that he had purchased the ring, the failure to charge as to his statement as to the purchase as testified to was reversible error.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. §§ 111, 120; Dec. Dig. § 46.]
    2. Burglary (§ 18) — • Indictment — Requisites.
    The averment, in an indictment for burglary with intent to steal, of the want of consent of prosecutor, is necessary, and the facts must show a want of consent.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. §§ 31, 32, 36; Dec. Dig. § 18.]
    3. Burglary (§ 46) — Instructions—“Nighttime.”
    An instruction defining “nighttime burglary” should give a definition of “nighttime” as 30 minutes after sundown, and not before, as provided by statute.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.
    
    Por other definitions, see Words and Phrases, vol. 5, pp. 4808, 4809.]
    Appeal from District Court, Hill County; W. C. Wear, Judge.
    Henry Moray was convicted of burglary, and he appeals.
    Reversed and remanded.
    Will Glover, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was charged by indictment with burglarizing the house of John Anderson with intent to commit the crime of theft. The evidence discloses that somewhere after midnight Mrs. Anderson waked up and discovered a man in the room with his hand on her person. A conversation occurred between them, she thinking it was her husband, when the party in the house left. She turned on the light, and the party ran away. She testified only as to her impression that it was appellant. The evidence introduced by appellant from his employers, who' live in the country five miles, where' appellant was staying, strongly tend to show that he was not in Hillsboro that night, where the burglary is stated to have been committed. Appellant also introduced evidence to the effect that he bought the ring that Mrs. Anderson identified as hers in the town of Gorsicana. The ring identified by Mrs. Anderson was taken from appellant on the 23d of July following the burglary on the 21st of the previous February. The alleged owner, John Anderson, was not placed upon the stand, and did not testify in the case.

Appellant urges error on the part of the court in failing to charge the jury with reference to his statement as to the purchase of the ring as he testified. This was error. ■This was made a ground of the motion for new trial. The state relied very largely upon the fact that the ring in question, taken from appellant in July after the burglary in February, showed that he was the party, who entered the house. His account of his possession was by reason of the purchase. If this was true, or if the jury believed it to be true, or if there was a reasonable doubt of the truthfulness of this statement, appellant would not be guilty. It was used as one of the main criminating facts against him. It is the duty of the court, under such circumstances, to give a charge applicable to this state of facts. Appellant properly reserved his exception to this matter, as authorized by the statute.

Appellant also relied upon the failure of the state to prove want' of consent of the alleged owner. An inspection of the facts shows that Anderson, the alleged owner, did not testify in the case; nor is it shown that he did not give his consent to appellant, if appellant is the person who entered the house. This is a necessary averment in the indictment, under the statute, and the facts must show the want of consent.

The court also, in defining a nighttime burglary, improperly instructed the jury, in that he informed them that by nighttime is meant by the statute any time from 30 minutes before sundown until 30 minutes before sunrise. The statute makes nighttime 30 minutes after, and not before, sundown. This might not, perhaps, be serious error, as the facts show that the burglary was committed at night; but attention is called to this, so that upon another trial, if it be deemed necessary to give a definition of nighttime, it may be properly given as defined in the statute.

For the errors pointed out, the judgment is reversed, and the cause is remanded.  