Mace v. State

Citations

• 9 Tex. Ct. App. 110

Syllabus

<p>1. Burglary. —Indictment which charges that the entry was made burglariously, and without the consent of the occupant, need not further charge that it was without the consent of any one authorized to give consent. The first head-note to Brown v. The State, 7 Texas Ot. App. 501, misinterprets the ruling in that case on this point.</p> <p>2. Same. — Consent of some authorized person other than the occupant is purely matter of defence to an indictment which negatives the consent of the occupant.</p> <p>3. Same. —-Charge or the Court. —If an indictment for burglary charged that the entry was effected in the night, an instruction for conviction in case the proof showed that it was effected in the daytime was material error if excepted to at the time, or if, though not then excepted to, it was calculated to injure the rights of the accused.</p> <p>4. Same. — But when, as in the present case, the proof clearly showed that the burglarious entry was effected in the night, as alleged, and the jury were correctly instructed on that state of case, a superfluous instruction, not applicable to any evidence, does not imply or indicate that it prejudiced the rights of the accused.</p> <p>5. Same. — If an erroneous charge was excepted to at the trial, the law requires this court to set aside the conviction without inquiry as to the effect of the charge. But if exception to the erroneous charge was primarily taken in the motion for a new trial, or in this court on appeal, a different rule obtains, and the conviction will not be disturbed because of the erroneous charge, unless it was calculated to injure the defendant’s rights.</p>