Black v. State

Citations

• 18 Tex. Ct. App. 124
• 1885 Tex. Crim. App. LEXIS 71

Syllabus

<p>1. Burglary—Indictment.— When the burglarious entry was made in'the daytime the indictment need not allege that the entry was without the consent of the owner of the house, or that of any other person. .</p> <p>2. Burglary with Intent to Commit Thert — Indictment — Variance.—In charging a burglary with intent to commit theft, an indictment may in a single count allege not only an entry with intent to steal, but also a theft after the entry. When the intent only is relied on, it is not necessary to designate what particular property the accused intended to steal; and when specific articles are unnecessarily designated, a conviction may be had though the proof shows that the accused knew nothing about such articles, provided it clearly appears that he entered with intent to commit theft. Nor will there be a variance between the allegation and the proof if the evidence, going beyond the allegation of the intent only, shows that he actually stole the specific articles unnecessarily designated in the indictment. But if the indictment designates specific articles as those stolen, the proof must correspond with the allegation or there will be a variance.</p> <p>3. Presumption of Intent — Charge of the Court.—By article 50 of the Penal Code it is provided that “the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.” Nevertheless it has often been held improper to give this article in charge to the jury, inasmuch as the presumption of innocence outweighs that of guilt arising merely from the means used, and it is incumbent on the State, by legal evidence, to overcome the presumption of innocence and establish the guilt of the accused beyond a reasonable doubt.</p> <p>4. Same — Case Stated. — In a trial for burglary with intent to commit theft the trial court instructed the jury as follows: “ If the jury believe from the evidence that the defendant, with the intent to commit the offe