
    ROBINSON v. STATE.
    (No. 4695.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.
    On Motion for Rehearing Jan. 16, 1918.)
    1. Burglary <&wkey;20 — Indictment—Sufficiency — “Private Residence.”
    Indictment alleging that accused unlawfully and by forcé, threats, an-d fraud and at night burglariously and fraudulently broke and entered the private residence of one named, was not defective under Pen. Code 1911, art. 1305, defining burglary of residence at night, and article 1314, defining a private residence as a building or room actually used as a dwelling place, in failing to allege that the private residence was a building or room.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Scries, Private Residence.]
    2. Burglary <&wkey;19 — Indictment — Sufficiency.
    An indictment charging that accused broke and entered a residence with the intent to take, steal, and carry away was not defective as charging the intent to steal after the entry, and failing to charge a previously formed intent.
    3. Indictment and Information &wkey;>110(18) —Indictment—Sufficiency.
    An indictment for burglary was not defective by using the word “steal” in place of the statutory word “theft.”
    4. Burglary <&wkey;19 — Indictment — Sufficiency.
    An indictment for burglary was not defective in failing to, describe the property of value, so that its value could be judicially known by the court or estimated in any manner.
    5. Burglary ¿=23 — Indictment — Sufficiency.
    An indictment for burglary was not defective as failing to charge that the property was in the possession of the owner of the residence which accused was charged with breaking and entering.
    6. Indictment and Information <§=125(19) —Sufficiency.
    An indictment for burglary, charging that accused unlawfully and by force, threats, and fraud and at night burglariously and fraudulently broke and entered a residence, was not duplicitous as charging both burglary of residence at night and another breaking and entering of a house.
    7. Criminal Law <&wkey; 1120(4) — Appeal—Record— Sufficiency.
    Bill of exceptions to admission of accused’s written statement is insufficient if it fails to disclose what the statement was.
    8. Criminal Law <&wkey;531(3) — Evidence—Confessions — Admissibility.
    No error appears in admission of written confession on its face filling legal requirements when the assistant county attorney before whom it was made testified that proper legal warning was given, and that no promise or threat was made, and that the confession was freely and voluntarily made,_ especially where the court submitted to the jury the question whether the confession was freely and voluntarily made.
    
      9. Criminal Law <&wkey;U20(4) — Appeal—Scope of Review — Preservation of Exceptions.
    Bill of exceptions to state’s offer to prove custom of prosecuting witness as to closing his door each night is insufficient to show error, where it fails to show what his testimony was.
    10. Criminal Law <&wkey;720(2) — Appeai^Scope of Review.
    Bill of exceptions to statement of prosecuting attorney that evidence showed certain facts, when in fact such facts were covered by counsel’s agreement as to what absent witnesses would testify to, does not show error, where the court submitted to the jury what the agreement was.
    11. Criminal Law <&wkey;1091(9) — Appeal—Bill of Exceptions.
    Bill of exceptions to instruction that if defendant did not voluntarily make a confession, it could not be considered, or if the jury had a reasonable doubt whether he made it voluntarily, it could not be considered as qualified by the court, “that no exception was made to this charge at the time, and no special charge was asked, and the charge is all right anyhow,” shows no error.
    12. Criminal Law <&wkey;1120(4) — Appeal—Bill of Exceptions.
    Bill of exceptions to testimony that private residence was a house and a room in a house shows no error, where it does not contain the evidence the witness gave on the subject.
    13. Burglary <&wkey;41(l) — Breaking — Evidence-Sufficiency.
    Evidence held to sustain conviction of burglary of a private residence at night.
    On Motion for Rehearing.
    14. Burglary <&wkey;28(l)— Indictment — Variance.
    Where indictment for burglary of residence at night could in no case have sustained conviction for any other burglary whatever, and the evidence showed only a burglary of a private residence at night, there was no variance.
    15. Burglary <&wkey;28(5) — Indictment and Proof — Variance—“House. ’ ’
    Where indictment alleged burglary of private residence at night, proof was admissible to show that such private residence was a building or a room, in view of Pen. Code 1911, art. 1309, defining a house as any building of whatever material.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, House.]
    16. Criminal Law <&wkey;1133 — Appeal—Preservation of Exceptions.
    One convicted of burglary c-ould not for the first time on motion for rehearing contend that the agreed evidence of two state’s witnesses who were absent was inadmissible on the ground that ho was deprived of being confronted by the witnesses, where he had made no objection on the trial, took no bill of exceptions, and did not mention such contention in his motion for new trial.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    James Robinson was convicted of burglary of a private residence at night, and he appeals.
    Affirmed. On motion for rehearing. Overruled.
    James E. Yeager, of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the" State.
   PRENDERGAST, J.

Appellant was convicted of the burglary of a private residence ■ at night, and his punishment assessed at the lowest prescribed by law.

The statute describes this offense as constituted “by entering a private residence by force * * * at night, * * * with the intent * * * of committing a felony, or the crime of theft” (article 1305, P. C.), and article 1314, to this effect:

“The term ‘private residence’ * * * shall bo construed to mean any building or room occupied and actually used, at the time of the offense, by any person or persons as a place of residence.”

The indictment was in two counts. The first, under the articles just stated, and the other for burglary of a house in daytime. The qourt submitted the first, and did not submit the second at all. This practice of indicting in different counts when the transaction is the same for nighttime burglary of a private residence and daytime burglary of a house has been many times commended and held proper by this court. Jackson v. State, 71 S. W. 280; Martinez v. State, 51 Tex. Cr. R. 584, 103 S. W. 930; Johnson v. State, 52 Tex. Cr. R. 203, 107 S. W. 52; Hawthorn v. State, 62 Tex. Cr. R. 114, 136 S. W. 776; Fox v. State, 62 Tex. Cr. R. 430, 138 S. W. 413.

The count of the indictment submitted, in addition to other necessary requisites of any indictment, alleged that on or about February 24, 1917:

“One James Robinson did unlawfully, by force, threats, and fraud, and at night, burglai-i-ously and fraudulently break and enter a private residence then and there occupied and used by Will Holston as a place of private residence, without the consent of the said Will Holston, then and there with the intent on the part of the said James Robinson fraudulently to take, steal, and carry away from, and out of, said private residence corporeal personal property then and there in said private residence being and belonging to the said Will Holston, from the possession of the said Will Holston and without his consent, with intent to deprive the said Will Holston, the owner of said corporeal personal property, of the value thereof, and with intent to appropriate to the use'and benefit of the said James Robinson.”

Appellant made no motion to quash the indictment, but after the trial he did make a motion in arrest of judgment claiming the indictment was fatally defective on these grounds: (1) It failed to allege that the private residence was a building or room. (2) It charged the intent to steal after defendant entered the private residence, and did not allege that he had formed the intent to steal or commit the crime of theft before entering the'house. (3) It failed to charge defendant with intent to commit the crime of theft, but used the word “steal,” when the statutory word is “theft.” (4) It failed to charge defendant with intent to commit theft in that it did not describe any property of value, or so that its value could be judicially known by the court or estimated in any manner. (5) It failed to charge that the alleged property was in the possession of Holston. (6) It was duplicitous in that it charged a nighttime burglary and a daytime burglary in the same count in that it charged defendant with breaking into a house, if a private residence is a house, with the intent to commit theft in addition to the crime of burglarizing a private residence. We see no necessity of discussing these various objections to the indictment. We have copied it above, and a comparison thereof with the statute shows that the indictment was sufficient against any and all of his objections.

By appellant’s first bill of exceptions he objected to the introduction of what he alleges was a written statement signed by appellant, on the ground that the state had failed to show that it was made freely and voluntarily after having first been cautioned that it might be used against him, and explaining the nature of the offense he was charged with, he being at the time in jail and in custody of an officer. The bill in no way discloses what the testimony -was on the subject, nor did it disclose what the statement or confession was. On that ground alone the bill is insufficient.

The court before approving the bill qualified it as follows:

“The evidence showed that defendant was not in jail but in the county attorney’s office at the time he made a statement and confession which was introduced in evidence. The assistant county attorney before whom the confession was made testified that the proper legal warning had been given defendant before he made his confession, and that no promise or threat was made to induce defendant to confess, and that his statement about the charge against him was freely and voluntarily made; but in view of the defendant’s testimony the court submitted to the jury the question of whether or not the confession was freely and voluntarily made. The written confession on its face filled the requirements of the law.”

This bill shows no error.

His next bill alleges that the state offered to prove by Holston his custom and habit as to shutting the door before retiring each night, and that he objected on the ground that it was not legitimate testimony. I-Ie says the court overruled the objection and permitted the witness to testify; but the bill in no way shows what the testimony of the witness was. This bill of itself is insufficient to show any error. But the court before approving it qualified it thus:

“Said witness had testified that be thought the door was closed; on crossi-examination he recalled that probably on one occasion be had left the door open, and the state then ask him if it was.his practice to close the door at night. If there was any relaxation of the rule in this instance it could not have been harmful to the defendant, for in his confession he admits that he ‘pushed the backdoor open and got the flour and meal’ out of the house he was charged with entering.”

I-Iis next bill alleges that during the argument of the state’s attorney he said, “The evidence shows that defendant was sitting on the front steps of Will Green, and saw Will Holston when he brought the groceries home;” that he promptly objected, claiming that the evidence did not show that fact; that the county attorney then said, “Well, it was agreed to before the trial began.” He again objected, and the court overruled both objections, to which he excepted. The court before approving' that bill qualified it thus:

“The county attorney and defendant’s attorney had some agreement as to what two absent witnesses for the state would testify to if present. During the closing argument of the state defendant’s attorney interrupted him with an objection that the evidence did not show that a statement made by the county attorney about the testimony of the absent witness was in the record. The county attorney replied that, ‘Well, we agreed that they would so testify if they were present.’ I do not remember just what the details of the agreement were; but I do know that in order to accommodate defendant’s attorney the state agreed to go to trial if he would admit what two witnesses upon whom subpoenas had not been served would testify if present; the county attorney contending that the agreement was that Will Green and Slattie Green, two negroes, would, if present, testify that 'the defendant, who was and is also a negro, was at their home at the time that Will Hol-ston, who lived next door to said Greens, came home in the afternoon, bringing with him some groceries; that the defendant saw said Will Holston when he came home, and that the defendant remained at their home till some time after midnight, when he got up and told them he was going home. The defendant said part of the statement was agreed upon, but that it was not agreed that defendant saw said Will Hol-ston when he came to his home. The agreement being oral, the court could not say just what was agreed upon, but left the matter to the jury.”

As thus qualified, it shows no error.

The whole of the next bill, after the style and number of the cause, is:

“Be it remembered that upon the trial hereof the court instructed the jury as follows: ‘If you believe from the evidence defendant did not voluntarily make the written statement which has been introduced in evidence against him, you wifi, not consider the same as evidence against Mm, or if you have a reasonable doubt thereof you will not consider the same,’ ” which is signed by appellant’s attorney.

The court qualified this by stating:

“That no exception was made to this charge at the time, and no special charge was asked, and the charge is all right anyhow.”

This bill ■ shows no error.

His last bill, after the style and number, is:

“Be it remembered that upon the trial hereof the state offered to prove by Will Holston and others that the alleged private residence was a house and a room in á house, and defendant objected on the grounds that the indictment did not allege that it was a house or a room in a house, the court overruled the objections, and defendant then and there duly excepted to the' court’s ruling, and here now presents this his bill of exceptions,' and prays that it be allowed and ordered filed as a part of the record in this cause,” which was signed by his attorney.

This bill does not show what evidence Hol-ston gave on the subject, and it presents no error.

The only other question appellant presents, necessary to state, is his claim that the testimony failed to show that the door to the alleged residence was closed at the time he entered and stole Holston’s property. We will give the testimony in full on this subject.

On cross-examination by appellant of the state’s witness Holston he testified:

“No, sir; X am not in the habit of leaving that door open. I did not leave that door open on purpose; it might have been left open occasionally. Occasionally I left the door open; yes, six'. I could not swear that the door was shut the night before when I went to bed. I usxxally shut it. It was open that morning. I usually shut it. It was open the next morning when I got up. I could not say whether it was shut or not.”

On redirect examination he testified:

“I am not in the habit of leaving the kitchen door open. I usually shut my door when I go home. I do not recall any other time during the last six months that I left that door open. Just like anybody else, I don't lock my doors; once in a while I just close them. I do not really know, but I think I closed the door that night. Of course after I was asleep I do not know. It was open the next morning. I say, I thought I closed it. I couldn’t say that I did, but then I thought I closed it. I think I closed it, because I usually close it every time I go to bed.”

On examination by the court he testified:

“That door has no catch on it. You just shut it. It hasn’t got no latch on it at all. We have a string inside there. We have a screen door there. We put a string on it and tie it sometimes when we want to shut the screen door. That screen door has no fastening at all; no more than a regular outfit which just shuts and a knob. The catch on the door has been broke. I do not know whether it was latched or not, but the catch has been broke on it. It was out of order once or twice. The door stays shut when I shut it because it is kinder tight. It shuts tight. We shut it sometimes with a string, but it shuts tight. I just pull the string through the crack and shut it, and that is what holds it most of the time.”

In said confession or statement, which was clearly proved up, as stated by the court, and which was unquestionably in terms prescribed by the statute, appellant said:

.“I was gambling with Will Holston Saturday night at a vacant house next to his house on South Fifteenth street. We were dealing monte. Galbert Wilson, John Wilson, Sam, and Quince had been there playing monte, and a lot more whose names I don’t know. Will Holston sold me a sack of flour and a sack of meal for $1.90. I gave him the money and won it back from him. He said when I got ready to go home I could go to his house; that he would leave the back door open, and I could get the flour and meal. He left the game before I did. I went by his house. I saw him in bed asleep. I pushed the back door open and got the flour and meal where he said it was. I went out, closed the door, and went home. It was a little after 12.”

The state reintroduced said witness Hol-ston, who swore positively that he did not play monte with the persons or any of them named by appellant, and that he never played any kind of game with appellant; that he (witness) did not win any money from him (appellant), and that appellant did not win any money from him (witness), and he did not sell Mm the sack of flour and meal for $1.90; that nothing like that ever occurred between him and appellant.

Appellant himself testified that he gambled at the time with the parties stated in his confession, and in fact reiterated on this point what he had stated in his confession. He stated that Holston had left the door open just like he said he would, and that he went in and got the stuff where he had it all fixed up. And further:

“The door was already open when I went in there. I just went in and got the stuff and came on out, and left the door just like it was, open. If I said in the confession that I pushed the door open, it was not true; the door was already open.”

On cross-examination he swore:

“The reason that confession says I pushed the door open there, that is when he [Mr. Woods] asked me did I push the door open. I might have told him — he was talking to me so fast— yes, sir; I signed the statement. He told me to sign it. I thought I had to do what he said do. I read the statement. He did not read it over to me. I did not notice it good when I signed #t. I did not notice that ‘pushed’ in there. It is true that I went in the house. That charge is true. It is true that I got the meal and the flour and the baking powder. I got it out of this house where Will Holston lives. I got it in the nighttime between 1 and 12 o’clock.”

Mr. Woods, assistant county attorney, who took the confession, and. Mr. Jenkins, who was present and with Woods witnessed it, both swore in effect that the confession was explained and read to appellant, and that he himself read it before he signed it, and that appellant at the time stated what was contained in said statement or confession.

The testimony shows that the evening before the alleged burglary that night, Holston bought some flour, meal, peas, and a can of baking powder; that he took them to, and placed them in, Ms residence; that the next morning all these articles were gone, and he told an officer about it, who succeeded in recovering for Mm all the articles, except a part of the peas; that he got back only a part of them. Appellant denied getting the peas.

The court, in Ms charge, required the jury to believe beyond a reasonable doubt all the essentials to said offense before they could convict appellant. , In addition he told the jury that if the said Holston sold the flour, meal, and baking powder to appellant, and told him he would leave the door, open, and he could call, enter, and get the goods, and that in direct pursuance of such permission he did enter said house and get said provisions to acquit Mm, or if they had a reasonable doubt thereof to acquit him. Again he specially charged the jury thdt:

“If you believe from the evidence that the door to said Will Holston’s residence was open, and the defendant entered said residence and stole said groceries, or if you have a reasonable doubt thereof, you will acquit him.”

He also charged the burden of proof was upon the state, the presumption of innocence, and the reasonable doubt.

On the whole, we think that the evidence on this point was sufficient to sustain the conviction.

The judgment wiR therefore be affirmed.

On Motion for Rehearing.

Appellant presents for rehearing some of the same questions discussed and decided against him in the original opinion. Nothing new is presented thereby; it is unnecessary to again discuss them.

However, he contends that the court misunderstood his contention about the insufficiency of the indictment. He states that he did not contend that more than one count should not b.e contained in the indictment. It was not intended in the original opinion to so state his contention. In the original opinion the grounds on which he claimed the indictment was bad were accurately stated. What he contends now is that the count under which he was convicted of the burglary of a private residence at night contained all the ingredients to constitute ordi^ nary burglary; that is, burglary not of a private residence. His contention may be further stated from his motion as follows:

“That if a private residence is a house within the meaning of the statute, then if, under the evidence, this house should not have been Will Holston’s private residence, but had been shown to be Will Holston’s other kind of a house, and defendant convicted therefor, then this one count would have contained two indictments in one count. * * * The court only instructed as to burglarizing a private residence at night, but the question is: Suppose the evidence had shown that it was not a private residence, could a conviction have still been had for burglary at night, or for burglarizing a house by breaking in the daytime? Appellant contends that such conviction could havé been had if the evidence had been such as to sustain it.”

The count under which appellant was convicted, which was quoted in the original opinion, avers the burglary of a private residence at night solely. It does not charge the burglary of any other house other than a private residence at night. Under it he could not have been convicted for any other burglary whatever.

In Curtis v. State, 76 Tex. Cr. R. 661, 176 S. W. 569, it was shown that appellant therein had been previously indicted and placed on trial under an indictment charging him with an ordinary burglary by force, etc., without alleging it was burglary of a private residence in the nighttime, whereas the one under which the conviction therein against him was obtained charged him with the burglary of a private residence at night. This court, through Judge Davidson, in that case held:

“Upon the first trial, after proceeding with the trial before the jury, in the introduction of evidence, it is to be supposed from the pleadings it was discovered that the house was a private residence; the burglary being committed at night. Appellant could not, therefore, be convicted under a charge of ordinary burglary. Burglary of a private residence at night is a distinct and different offense, made so by the statute expressly. In other words, under an indictment charging ordinary burglary a party cannot be convicted for the burglary of a private residence at night; nor can he be convicted, if the charge is for burglarizing a private residence, for the ordinary burglary.”

This has been the holding of this court uniformly, and in many cases.

In 2 Branch’s Ann. P. O. p. 1290, he lays down these correct propositions of law applicable heroin: (1) If the count on which defendant was convicted is for ordinary burglary, and the proof shows a burglary of a private residence at night, the variance is fatal; the two offenses being separate and distinct — citing Fonville v. State, 62 S. W. 576; Martinus v. State, 47 Tex. Cr. R. 528, 84 S. W. 831, 122 Am. St. Rep. 709; Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703; Rodgers v. State, 59 Tex. Cr. R. 146, 127 S. W. 834. (2) Where the proof shows a burglary of a private residence at night, a conviction for ordinary burglary will he set aside; the two offenses being separate and distinct — citing 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.

The 'uncontradicted evidence herein shows that the house burglarized was the private residence of Holston, and that the burglary was committed in the nighttime. So that, there is no merit at all in appellant’s contention.

Our statute prescribing the offense of •burglary of a private residence at night does not use the word “house” in designating the private residence, but uses alone “private residence.” The indictment in this instance followed the statute in averring the burglary of a private residence. However, article 1309, P. C., defines what is meant by a house as “any building or structure erected for public or private use, * * * and of whatever material it may be constructed.” In Favro v. State, 39 Tex. Cr. R. 453, 46 S. W. 932, 73 Am. St. Rep. 950, this court, in another opinion by Judge Davids on, held that a humble structure built of odd planks and boxes and covered with a wagon sheet, and used by the occupant as his residence, was a house within the meaning of the burglary statute, among other things holding therein:

“Such a structure is as much under the protection of the burglary statute as would be a structure entirely made of wood or stone, brick or granite. The law‘does not mention the character of structure or the material of which it shall be made. It protects the humble tenant in his tent as well as his more fortunate neighbor in his palace.”

There is, therefore, no merit in appellant’s further contention, in substance, that because the indictment alleged that appellant burglarized the private residence of Holston at night, proof was not admissible that such private residence was a building or a room. The uncontradicted evidence showed that the private residence of Holston, which appellant burglarized at night, was an ordinary house in which there was a room or more than one room.

For the first time in this court, after even the cause had been submitted on appellant’s motion for rehearing, he contends that the agreed evidence of the two state’s witnesses, who were absent, was inadmissible on the ground that he was deprived of being confronted by the witnesses by the agreement made between his and the state’s attorney as to what their testimony would be, and contends that the attorneys could not waive the sanctity of their testimony under oath. The record shows that the testimony of these two witnesses was agreed to by the attorneys in open court when appellant was present and heard it, and that it was stated to the jury as the testimony of these-two witnesses. Appellant did not then or at any other time during the trial make any objection whatever to the admission of this agreed testimony of these witnesses. He took no bill thereto; he did not make that a ground of the motion for a new trial, and, as stated, for the first time at this late date makes said objection. This presents no ground for a rehearing or a reversal. Eoff v. State, 75 Tex. Cr. R. 245, 170 S. W. 707; State v. Levy, 262 Mo. 181, 170 S. W. 1114. This court has also so held’ in other cases.

The motion is overruled. 
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