Ross v. State

Citations

• 16 Tex. Ct. App. 554
• 1884 Tex. Crim. App. LEXIS 150

Syllabus

<p>1. Burglary—Indictment.—See the opinion in extenso for an indictment for burglary held sufficient to charge the offense.</p> <p>2. Same—Definition of “ Entry”—Charge of the Court.—In a trial for burglary the trial court charged the jury on the subject of “ entry t : as follows: “ It is not necessary that there should be any actual breaking .. to constitute the offense of burglary, when the entry is in the night time. An entry into a house in the night time, without the consent of the , owner, or some other person authorized to give consent, with intent to commit a theft, is an entry by force, as meant in the law.” Held, error; that to constitute burglary the entry must be by “force,” “ threats ” or “ fraud,” whether committed in the day time or night. The definition of entry in Article 706 of the Penal Code, which makes it to include, within the meaning of Article 704, every kind of entry but one made with the free consent of the occupant or of one authorized to give such consent, does not eliminate from the offense the element of force, nor dispense with the necessity of alleging and proving an entry by force. But if the entry is at night, the slightest force suffices.</p> <p>3. Same—Possession of Recently Stolen Property—Bub,den . of Proof.—The explanation of a defendant when first found in possession of stolen property, if reasonable, imposes upon the State the burden of proving its falsity.</p> <p>4. Same—Pact Case.—See the statement of the ease for evidence held insufficient to sustain a conviction for burglary.</p>