
    REYES v. STATE.
    (No. 8035.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1924.)
    Burglary <&wkey;24, 25 — Indictment not alleging whether entering was in daytime or night or by breaking stated no offense.
    An indictment alleging that defendant entered a private residence with intent to steal but which failed to allege whether it was in the daytime or at night or that the entry was by breaking stated no offense within Pen. Code 1911, arts. 1303, 1304, 1306.
    Appeal from Criminal District Court, Cameron County; J. C. George, Special Judge.
    Augustine Reyes was convicted of burglary, and he appeals.
    Reversed, and prosecution dismissed.
    E. T. Yates, of Brownsville, for appellant,
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   HAWKINS, J.

Conviction is for burglary with an assessed punishment of three years’ confinement in the penitentiary.

The indictment alleges that appellant by “force,' threats, and fraud” entered a house, which was the private residence of Rose Darlington, with the intent to commit the offense of theft, but fails to allege whether it was daytime or night, or that the entry was by “breaking.”

Article 1305 of the Penal Code defines burglary of a private residence to be the entry thereof by force, threats, or fraud at night, or the entry thereof in any manner either day or night and remaining concealed therein until night, with the intent of committing the crime of theft or any other felony. There being no allegation in the present indictment that the entry was made at night or that appellant entered the house and concealed himself until night clearly does not charge burglary of á private residence. The point is further made that the undisputed evidence shows the burglary was committed in the daytime and that the indictment fails to charge that character of burglary and therefore the conviction cannot stand. This contention must be sustained. Article 1303 defines ordinary burglary to be:

“Entering a house by force, threats or fraud, at night; or in like manner 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, Penal Code, reads:

. “He is also guilty of burglary who, with intent to commit a felony or theft by breaking enters a house in the daytime.”

It has been held many times by this court that an indictment which charges the entry of a house by force and breaking charges the crime of either a nighttime or daytime burglary without the necessity of alleging whether it occurred in the daytime or at night, but, so far as we are aware, it has never been held that a daytime burglary could be charged without alleging that the entry of the house was accomplished by a breaking. Many cases will be found in the reports upon this subject. See Summers v. State, 9 Tex. App. 396; Carr v. State, 19 Tez. App. 635, 53 Am. Rep. 395; Bravo v. State, 20 Tex. App. 18S; Bates v. State, 50 Tex. Cr. R. 568, 99 S. W. 551; Newman v. State, 55 Tex. Cr. R. 273, 116 S. W. 577; Winkler v. State, 58 Tex. Cr. R. 564, 126 S. W. 1134; Rodgers v. State, 59 Tex. Cr. R. 146, 127 S. W. 834; Garner v. State, 31 Tex. Cr. R. 22, 19 S. W. 333; Bradford v. State, 62 Tex. Cr. R. 424, 138 S. W. 118, 119. The present indictment omitting the allegation that the entry into the house was by “breaking” does not charge the offense of daytime burglary; even had there been an allegation that the entry did occur in the daytime, it would not have charged the crime of burglary, the allegation of “breaking” being omitted.

Under the law it becomes our duty" to reverse the judgment and order the prosecution dismissed under the present indictment, which is accordingly done. 
      <&wkey;For other cases see same topic and KEr-NUMBER in all Key-Numbered Digests and Indexes
     