Opinion
No. 23082.
Delivered March 14, 1945.
1. — Burglary — Intent to Steal.
To be guilty of burglary with intent to steal, under the law, one need not have obtained any money or other thing of value in building broken into by him.
2. — Same.
The intent of burglar to steal money or other valuables in burglarized building may be inferred from surrounding circumstances, and the weight to be given these surrounding circumstances was a question properly left to the jury.
3. — Same.
The very fact of breaking and entering a house in the nighttime raises the presumption that it is done with intent to steal.
4. — Burglary — Evidence — Drunkenness.
In prosecution for burglary, admission of testimony as to the defendant's drunken condition at time of and for three days before alleged burglary was not error, where jury imposed lowest penalty of two years' imprisonment.
Appeal from Criminal District Court of Harris County. Hon. Frank Williford, Jr., Judge.
Appeal from conviction for burglary; penalty, confinement in the penitentiary for two years.
Affirmed.
The opinion states the case.
A. H. Krichamer, of Houston, for appellant.
A. C. Winborn, Criminal District Attorney, and E. T. Branch, Assistant Criminal District Attorney, both of Houston, and Ernest S. Goens, State's Attorney, of Austin, for the State.
Appellant was convicted of the burglary of the filling station of S. K. Kelso in Houston, Texas, and given a penalty of two years in the penitentiary.
There are no bills of exceptions in the record. The statement of facts shows that appellant, in company with a companion, broke the glass out of a window in this filling station and entered the building, and, when soon apprehended, had taken the drawer out of the cash register and emptied its contents on the floor. It is true that he had obtained no money or other thing of value, but such is not necessary under the law. See Henderson v. State, 250 S.W. 688, wherein it quotes from Alexander v. State, 31 Tex.Crim. R., 20 S.W. 756, as follows:
"Though there was no direct evidence of the intent, it might be inferred from the surrounding circumstances. The weight to be given to these was a question properly left to the jury; and when a person enters a building through a window at a late hour of the night, after the lights are extinguished, and no explanation is given of his intent, it may well be inferred that his purpose was to commit larceny, such being the usual intent under such circumstances."
In the case of Mullens v. State, 35 Tex.Crim. R., 32 S.W. 691, it is said:
"The very fact of breaking and entering a house in the nighttime raises the presumption that it is done with intent to steal, says Mr. Archbold. 2 Archb. Crim. Prac. and Pl., p. 1107."
Appellant was not charged with theft; he was only charged with burglary with intent to steal, and the fact of an attempt to rifle the cash register undoubtedly had some weight with the jury in ascertaining his intent.
There is testimony in the record relative to the drunken condition of appellant not only at the time of the alleged burglary but also for three days prior thereto. This evidence only suggests drunkenness and does not suggest temporary insanity caused by such drunkenness. In the event that such had suggested this type of temporary insanity, same could only have been used by the jury in mitigation of the penalty, if it so desired. The lowest penalty of two years was given appellant, and the jury could not have mitigated the penalty any further than they did by giving the lowest penalty, and we can see no possible error here presented.
The judgment is affirmed.