
    DENNIS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied June 27, 1913.)
    1. Criminal Law (§ 1093) — Continuance.
    A bill of exceptions did not show any error which stated that 30 or 40 minutes after accused’s announcement as ready for trial he moved to postpone, claiming that he had not been served with a true copy of the indictment, and that the motion was overruled because the copy served was sufficient to apprise accused of the nature of the accusation, and that accused accepted said copy and summoned his witnesses and appeared and asked for a postponement because of absent witnesses but afterwards stated that his witnesses were all present and he was ready, whereupon the motion to postpone was overruled as coming too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    2. Burglary (§ 46) — Instructions — Burglary in Nighttime.
    Instructions expressly requiring the jury to find that accused entered the house at night in order to convict, and charging in addition that if accused did not enter the house at night, or with the owner’s consent, or not by force, or not for the purpose of committing theft, the jury should acquit, sufficiently charged that the jury must find beyond a reasonable' doubt that accused entered the house at night.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    3. Names (§ 16) — Idem Sonans.
    The fact that the indictment charged that the house burglarized belonged to Ike “Geton,” while the evidence showed that it belonged to Ike “Jetton,” was not a material variance; the names being idem sonans.
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 4, 12-14; Dec. Dig. § 16.]
    4. Burglary (§ 41) — Prosecution — Sueei-ciency of Evidence.
    Evidence held to require a conviction for burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 9A-103, 109; Dec. Dig. § 41.]
    5. Criminal Law (§ 1173) — Appeai>-Harmless Error.
    Code Cr. Proe. 1911, art. 735, provides that in all criminal cases the judge shall deliver a written charge distinctly setting forth the law applicable to the case and shall so charge in felony cases whether requested or not, and article 743 provides that, whenever it appears from the record in a criminal case on appeal that any of the requirements of the eight preceding articles are disregarded, the judgment will not be reversed unless the error was calculated to injure accused’s rights. Seld¡ that error in not charging on circumstantial evidence was not reversible where under the evidence an honest jury could not have acquitted.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    6. Burglary (§ 25) — Proof — Consent of Owner — Entry.
    Where a burglarious entry is alleged to have been by force and breaking, the want of the owner’s consent to the entry need not be specifically alleged.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 48-50; Dec. Dig. § 25.]
    7. Burglary (§ 9) — “Breaking.”
    By “breaking” into a house is meant that the entry must be made with actual force, but the slightest force is sufficient to constitute a breaking, as the lifting of a doorlatch, etc.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 6-12; Dec. Dig. § 9.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 862-866.]
    8. Burglary (§ 4) — “House.”
    A “house,” as defined by the burglary statute, is any building or structure erected for private use of whatever material, and a harness house, which was a complete room with the door entered as the only entrance and which was made a part of a barn, was a “house” within the statute.
    [Ed. Note. — For other 'cases, see Burglary, Cent. Dig. §§ 14-18; Dec. Dig. § 4.
    
    For other definitions, see Words and Phrases, vol. 4, pp. 3351-3357.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Newt Dennis was convicted of burglary in the nighttime, and appeals.
    Affirmed.
    Homer B. Latham, of Bowie, for appellant. C. E. Lane, 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
    
   PRENDERGAST, J.

Appellant was convicted for nighttime burglary and his penalty fixed at two years’ confinement in the penitentiary, the lowest prescribed by law.

The indictment in this case is in one count only. It alleges, .in the terms of the statute, burglary at night with intent to steal. Then charges the actual theft of a single buggy harness worth $10. All the elements necessary to charge theft are specifically charged in this part of the indictment. It follows the indictment in the case of Williams v. State, 24 Tex. App. 69, 5 S. W. 838, and Coates v. State, 31 Tex. Cr. R. 261, 20 S. W. 585, and is a good indictment for burglary.

Appellant has a bill of exceptions to the overruling of his motion to postpone the trial for two days, claiming that he had not been served with a true copy of the indictment. Neither the bill nor motion in any way show wherein the copy that was served on him was not a true copy. The court, in approving the bill, qualified it by stating; “This case was called on call of the docket on the day of the trial before noon, whereupon the state announced ready and the defendant asked that the case be set over until the afternoon, or that it be continued, as his witnesses were not present, whereupon the case was set over until 1 o’clock in the afternoon, and counsel for the defense came to me as I was entering the courthouse door getting ready to call court at 1 o’clock and stated to me that he was now ready; that his witnesses were all present. Some 30 or 40 minutes after that announcement on his part he presented me with the motion shown by this bill, which motion was overruled for the reason and on the ground that the copy served on the defendant was sufficient to apprise him of the nature of the accusation against him; that he accepted said copy, upon it summoned his witnesses, appeared in court and asked that the case be set over on account of the absence of his witnesses, and thereafter, as aforesaid, told the court that his witnesses were all present and that he was ready for trial, and this motion came too late in the opinion of this court.” The court’s action was correct and no error is shown in his overruling appellant’s motion.

Appellant requested the court to give his special charge to the effect that the defendant is charged with burglary at nighttime, and unless you find and believe beyond a reasonable doubt that the defendant did enter the barn of Ike Jetton at nighttime, if you do find that he entered same, you will find him not guilty.

The court in submitting the ease to the jury for a finding expressly required them to find that he entered the house at night before they could find him guilty. Then he charged the jury in a separate and distinct charge that if they did not find that he entered the house at night, or even if he entered it and he did do so with the consent of Jetton, or if he entered it but did not do so by force, or if he did not enter it for the specific purpose of committing the offense of theft, to find him not guilty. This clearly and fully covered the point requested in said special charge, and the court committed no error under the circumstances in refusing his said special charge.

The indictment charged that the house entered was owned by Ike “Geton.” In the statement of facts his name is spelled, in some places, “Getton,” and in the record, in other places, it is spelled “Jetton.” There is no question whatever in the record about the identity of the owner of the house burglarized and the harness stolen therefrom. Appellant requested this special charge: “The defendant stands charged by indictment with the offense of burglary of a house owned and in the possession of Ike ‘Jetón.’ Xou are instructed that, if you find from the evidence that the proof shows a burglary of a house owned and in the possession of Ike ‘Jetton,’ you will find the defendant not guilty and so say by your verdict.” In appellant’s bill to the refusal of the court to give his said special charge, the court qualified it by stating “with the explanation that the two names are pronounced alike, being G-Tun, and are idem sonans.” There was no error in the court refusing appellant’s special charge. Feeny v. State, 62 Tex. Cr. R. 585, 138 S. W. 135; Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696.

In his motion for a new trial appellant claims, for the first time, that the court erred in not charging on circumstantial evidence. In the qualification to his bill of exception on this subject, the court explains that no exception was taken at the time of the trial to the court’s charge in failing to charge on circumstantial evidence and that no charge on that subject was requested. It would have been proper in this case for the court to have charged on circumstantial evidence. Article 735, C. C. P., says: “After the argument of any criminal cause has been concluded, the judge shall- deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case. * * ⅜ This charge shall be given in all cases of felony, whether asked or not.” Under this article this court has always held that where the state’s case is made by circumstantial evidence it is necessary to give a correct charge on circumstantial evidence. But long subsequent to this article, by the amended act of 1897, p. 17, now article 743, O. O. P., it was expressly enacted that, whenever it appears from the record in any criminal action upon appeal that any of the requirements of the eight preceding articles, which includes said article 735, have been disregarded, “the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on a motion for new trial.” Since the enactment of this article it has always been held that this amendment was a remedial statute designed to prevent reversals for mere omissions in the charge of the court, and that when such omission has occurred “the judgment shall not be reversed, unless the error was calculated to injure the rights of the defendant.”

In this case the evidence is undisputed.. It shows, without contradiction, that on the' evening of December 4, 1912, at about 4 o’clock, appellant and said Jetton traded horses at the home of said Jetton, and that in the trade appellant included this set of harness; that the trade was made in Jetton’s lot; that appellant then and there delivered to Jetton said harness, and that Jetton hung it up in his gear house at his barn and closed and fastened the door to his harness house. Appellant then left, claiming that he was going to the town of Nocona. Jetton did not go into his harness house until the next morning about 9 o’clock when one of his neighbors came over to see the horse that he had traded for from appellant, the neighbor having heard it from the school children who passed Jetton’s house after the trade was made; that Jetton then took this neighbor to his harness house to show him the set of harness that he had got in this horse trade; that he found his harness house door closed, but upon opening it the set of harness was gone. It was taken some time between 4 o’clock on the evening of December 4th and the next morning at 9 o’clock. The horse and buggy in which appellant left Jetton’s house was tracked from there some distance, not towards Nocona, but some other point, and appellant, after getting some distance, stopped his horse and buggy, got out, and he was tracked back down the road some distance, then into Jetton’s field, and his tracks showed that he was going towards appellant’s gear house. Jetton’s horses had been in his lot and his tracks could not be seen in the lot and at the gear house, because the horses, in walking about over the lot, had obliterated appellant’s tracks, if he made any. The next morning early appellant was found asleep in an outhouse near another witness’ home. This witness woke him up and then saw that he had this new set of harness. The next morning appellant went to the town of Bowie in Montague county. As soon as Jetton found that his harness had been stolen, he had his neighbor to phone to the officer at Bowie. The officer at once located and arrested appellant, and he then had this set of harness. Jetton then went to Bowie, saw the harness, clearly identified it, and recovered it. No explanation whatever was then made by appellant of his possession of said harness. There was no intimation in the evidence that any other person than appellant stole said harness, and no one was shown to- be in a position to have done so.

Appellant’s only defense was insanity. He offered the testimony of several witnesses whose testimony was very unsatisfactory and insufficient to establish his insanity, but may have had a tendency to do so. The court correctly submitted in his charge this question to the jury and told them that if he was insane to acquit him. No complaint was made to the charge of the court on this subject or to the finding of the jury on this issue against him.

Under the proof in this ease no honest jury would have rendered any other verdict than that of guilty.

Under the circumstances and proof in this case, and under said article 743, O. O. P., the error of the court in not charging on circumstantial evidence was not calculated to injure the rights of the defendant and did not injure them to the extent as to require the reversal of this judgment on that ground. It is needless to cite the many decisions of this court applicable to this question and conclusive against appellant.

Appellant attacks the sufficiency of the evidence to sustain the conviction on these grounds: First, that it was insufficient to show a nighttime burglary. We think it was sufficient Second, that it failed to show that the entry to Jetton’s harness house was without his consent. The entry having been alleged to be by force and by breaking, it was unnecessary to either allege or prove in specific terms the want of the owner’s consent. Sullivan v. State, 13 Tex. App. 462; Mace v. State, 9 Tex. App. 110; Summers v. State, 9 Tex. App. 396; Reed v. State, 14 Tex. App. 662; Black v. State, 18 Tex. App. 124; State v. Williams, 41 Tex. 98; Taylor v. State, 23 Tex. App. 639, 5 S. W. 141; Buntain v. State, 15 Tex. App. 485; Uangford v. State, 17 Tex. App. 445; Smith v. State, 22 Tex. App. 350, 3 S. W. 238; Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847. Third, that the evidence failed to show that force was required to enter the house. Jetton testified, which was undisputed, that when he placed said harness in his harness house he closed and fastened the doors, and that there was no other way to get the harness out than through this door. The statute says that entry includes every entry but one made by the free consent of the occupant; that it is not necessary there should be any actual breaking to constitute the offense of burglary when the entry is at night. C. C. P. art. 1306.

By breaking is meant that the entry must be made with actual force. The slightest force, however, is sufficient to constitute a breaking; it may be by lifting the latch of a door that is shut and other such like entries. C. C. P. art. 1308. And his only other attack on the sufficiency of the evidence is he claims that the evidence fails to show that the place from which the harness was taken was a house or only a room attached to a house.

A house, as defined by our statute, is. any building or structure erected for private use of any individual of whatever material it may be constructed. The evidence in this ease, without contradiction, shows that this harness house was a complete room with this, door as the only entrance thereto, which was added onto and made a part of Jetton’s barn. This clearly, under all of the decisions, is a house within the meaning of our burglary statute. Jame v. State, 63 Tex. Cr. R. 559, 140 S. W. 1086.

The judgment will be affirmed.

DAVIDSON, P. J.

(dissenting). The majority opinion concedes this to be a case purely dependent upon circumstantial evidence, and that a charge on that subject should have been given. But it is asserted that the error is not reversible because the evidence is so strong that the jury were bound to convict; therefore error is protected by terms of article 743, O. O. P. I do not believe that because the evidence is strong the court is-justified in not charging the law of the case. If this be- true, then the court need not charge any phase of the law at all if the facts show strongly or even conclusively the guilt of the accused. This cannot be correct under our statute which requires the court to give in writing a charge on the law applicable to the facts whether requested or not. Article 735, C. O. P. Appellant reserved his exception in motion for new trial. This is sufficient by the wording of the statute. O. O. P. art. 743. It has been always held to be fundamental error not to charge on circumstantial evidence whether excepted to or not. White’s. Annotated O. O. P. § 813, where a great number of cases are cited; also Branch’s Crim. Law, §§ 202, 203. If this universal rule has been changed, it is by reason of the fact that article (C. C. P.) 743 requires exception to be taken during the trial or on motion for new trial. Exception was duly reserved on motion for new trial by appellant. But my Brethren, conceding this to be the law and the statute, say it is not error because they find the facts to be sufficient to sustain the verdict, and that the jury ought to have found the same verdict had the law been given. I do not know what the verdict would have been under a charge giving the law. I do not care to write further. The affirmance is in the face of the the law. The judgment ought to be reversed.  