
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1910.)
    1. Burglary (§ 9) — Statutory Offense — Entry.
    Under the statute defining burglary at night, an actual brealring is not required, and it only requires, that an entry shall be made by force, such as opening a door that is shut, whether latched or not.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 6-12; Dec. Dig. § 9.]
    2. Burglary (§ 46) — Instructions—Sufficiency.
    ■ Where the court, on a trial for burglary in the nighttime, charged that to justify a conviction the jury must believe that accused by force .entered the house of prosecutor at night with intent to steal as charged in the indictment, and that if the evidence raised a reasonable doubt whether the door of the house was open or not accused must be acquitted, an instruction that by the term “entry” was meant every kind of entry except one made by free consent of the occupant, and that it was not necessary that there should be any actual breaking, was not ground for reversal.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dee. Dig. § 46.]
    3. Criminal Law (§ 1173) — Appeal—Harmless Error — Instructions.
    Where, on a trial for burglary with intent to steal, the evidence showed an entry and the larceny of a harness, and that accused offered to sell a harness, and explained that his father had given it to him to sell, and that at the time of his explanation he was not suspected of the crime, and that the harness belonged to prosecutor, and the father of 'accused as a witness for him testified that he had not owned a harness and had not given any harness to. his- son to sell, the failure to charge on explanation of recently stolen property was not prejudicial to accused, since a charge on the subject would have been injurious to him, because making prominent the testimony of his father.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    4. Burglary (§ 46) — Evidence — Instructions.
    On a trial for burglary, a charge on explanation of recently stolen property is only applicable where the explanation is offered when the title or possession of the property is first questioned.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    5. Criminal Law (§ 814) — Triai^Instruction — Applicability to Evidence.
    The court need not give a charge on an issue not raised by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979-1985; Dec. Dig. § 814.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Almore Jones was convicted of burglary, and he appeals.
    Affirmed.
    Hart, Mahaffey & Thomas, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes.
    
   McCORD, J.

This is an appeal from a conviction for burglary with a penalty of two years’ confinement in the penitentiary.

The bill of indictment charged the defendant with the burglarious entry at night with the intent to commit the crime of theft. The house burglarized was charged as belonging to G. B. Thaggard. This witness testified that he lived in the town of Texarkana, and on the night of March 23, 1910, some one entered his harness house and stole' therefrom a set of harness; that the house was not locked, but it had a door that he kept closed and buttoned; that he remembers that he closed the door that night; that the next morning when he got up his set of harness was gone; that it was a set of new double harness, with lines that he had recently purchased, and was of the value of $20 or $25; that this occurred on Wednesday night, and on the following Friday he recovered the harness from a merchant in Texarkana by the name of Bobo. He says that the defendant had worked for him as a teamster, he (the witness) keeping a large number of teams and doing hauling generally; that defendant quit working for him seven or eight days before the burglary. He further testified that he saw tracks around the house, one of these tracks appearing to-have been made by a No. 11 shoe and the other track smaller; that defendant was a large man and wore about a No. 11 shoe. A. B. Jordan testified that on Friday morning he saw a notice in. the'paper about the loss of some harness by Mr. Thaggard; that he was clerking for Mr. Bobo at his store. He says that on Friday about 1 o’clock defendant came to the store and wanted to know if they wanted a set of harness, or if he knew of anybody who did want to buy a set; that witness asked him where he had his harness, and defendant pointed up to a ■camp. The witness told him to go and get the harness; that, while witness did not desire to buy the harness, he knew a man he thought would, and told him to get the harness and bring them up to the store and leave them there, as the man would be there about 2 or 3 o’clock; that defendant went and got the harness and brought them to the store and went on to a shingle mill where he was at work. Witness then notified Mr. Thaggard, who came and identified the harness and took them off; that defendant did not say where he got the harness, but said he had them at a camp; that when he brought the harness back he told the witness the harness belonged to his father, and his father had sold the team and had no further use for the harness. This is a sufficient statement of the facts to explain the points in issue.

On the trial of the case the court charged the jury, giving them the usual definition of burglary and theft. Also gave in charge to the jury, in his definition of burglary, the following: “By the term ‘entry’ into a house is meant every kind of entry but one made by free consent of the occupant or of one authorized to give such consent. It is not necessary that there should be any actual breaking to constitute burglary in the nighttime.” However, when the court applied the law to the facts of the case, he stated to the jury that before they could convict the defendant they must believe beyond a reasonable doubt that the defendant on the 23d day of March, 1910, in Bowie county, Tex., by force in the nighttime did enter the house of said Thaggard as charged in the indictment with the intent to commit the crime of theft as has been defined. He further directed the jury that, if the evidence raised in their minds a reasonable doubt whether the door of said house was open or not, they would acquit the defendant, and that the state must show beyond a reasonable doubt that the house was closed and the door was shut, and, if the state failed in its proof in this respect, they would find defendant not guilty. Counsel in his motion for new trial complains that the court erred in telling the jury that by the term “entry” into a house is meant every kind of entry but one made by the free consent of the occupant, and that it is not necessary that there should be an actual breaking to constitute burglary in the nighttime. This is an abstract statement of the law; but, when the court came to apply the law to the facts of the case, he directly and specifically instructed the jury that the entry had to be made with force in order to constitute burglary. Counsel in his motion for new trial and his brief seems to insist upon the idea that there must be an actual breaking in order to constitute burglary in the nighttime. The statute does not so read. In burglary in the daytime there must be an actual breaking, but a burglary at night does not require an actual breaking, but it requires the entry to be made by force. Opening a door that is shut, whether latched or not, is such force as would constitute burglary in the nighttime. It is not sufficient ground to require a reversal for the court, in his explanation and definition of an offense, as created by the statute, to state an abstract proposition of law, and while the abstract proposition of law, as stated by the court, may not be applicable to the facts of the case, yet, when the court applies the law to the facts of a particular case and sets forth the essential ingredients for the state to prove, this meets the requirements of the law and renders an immaterial abstract proposition of law harmless.

The appellant also contends that the court should have charged the jury on the explanation of the defendant at the time he sold the property. The father of defendant took the stand in behalf of defendant, and testified that he did not own any harness, and that he did not give any harness to his son to sell. The defendant at the time he made this statement to the witness was not suspected of the theft, nor was his title or possession questioned. Therefore we think it was unnecessary for the court to charge on explanation of recently stolen property, as such a charge is only applicable where it is offered when the title or possession of the ■property is first questioned. But, whether it was proper to give this charge or not, defendant’s own witness disproved the declaration that he made when he went to sell his harness. Therefore the failure of the court to so charge could not be regarded as harmful and could not possibly have changed the result of the case. To have given the charge in the state of the record and the testimony before the court would, if anything, have been injurious to the defendant and would havg made prominent his father’s testimony denying that he had given him any harness and given him authority to sell them. Therefore, in view of the record, we think there is no merit in this contention, and it could not possibly have injured the defendant.

The charges requested, so far as applicable, covered the same issues that had been submitted by the court in its charge to the jury, except the third special charge, wherein the request was made that the court charge the jury that, if the defendant was given the harness by a horse trader, or some other person, to sell for said horse trader or other person, or if they have a reasonable doubt thereof, to acquit. There was no testimony in the record that would raise such an issue, and therefore the court was not called upon to so charge. •

Finding no error apparent in the record, the judgment is affirmed.  