Burke v. State

Citations

• 5 Tex. Ct. App. 74

Syllabus

<p>1. Indictment. — Surplusage may be eliminated from an indictment without affecting it, where the averments are sufficient to apprise the defendant of the charge against him,' and enable him to plead the judgment in bar of another prosecution.</p> <p>2. Same—Burglarious Entry with Intent to Commit Rape. —The indictment charges defendant with “unlawfully, feloniously, and burglariously” entering the house of J. M. R., “there situate, with intent, then and there, unlawfully, feloniously, and burglariously, and against the will” of A. I., her, the said A. I., to ravish and carnally know, etc. . Held, sufficient to charge the intent. While, under an indictment for assault with intent to rape, the corporeal, personal presence of the female at the time and place-of the assault would be indispensable, it is not so under an indictment for burglarious entry with intent to commit rape. The evidence may show the intent in forcing the entry into the house, and as the intent constitutes the gist of the offence, the actual presence of the female is immaterial.</p> <p>8.-Burglary—Entry.—Entry, under our statute, does not signify the entrance of the whole body, but may consist in the entry of any part of the body, for the purpose of committing a felony.</p> <p>4. Same—Fobce.— The slightest force will constitute breaking. It may be by lifting the latch of a closed door, raising a window, the entry at a chimney, or other unusual place.</p>