day. The witness did not think that the articles missed could have been taken in the day time. He did not know that the defendant entered his mill, nor did he know when the missed articles were taken. They may have been taken three or four days before they were missed. When witness went to Clarke's mill, he found no one present but Mr. Clarke and his son William. Mr. Clarke delivered to the witness such articles as he could identify, and witness paid him the price that he had paid for them. Witness did not remember that, at the time he recovered the stolen goods from Mr. Clarke, he told Clarke he did not know when they were taken, and they might have been taken at night or during the day while witness was engaged. At that time, a great many persons came about the witness' mill during the day. The witness did not think that the articles he recovered from Clarke could have been taken out during the day, inasmuch as the witness was satisfied that he would have detected any attempt in the day time, and, beside, they were deposited in a place inconvenient to be reached.

William Clarke was the next witness for the State. He testified that he remembered the occasion when J. L. Smith came to his father's mill, about two years before this trial, and claimed some articles of brass which witness and his father had previously purchased. He, Smith, recovered a brass kettle, a brass "bearing," and some other articles. This brass bearing" the witness purchased a few days before from the defendant. This was the only article identified by the witness Smith which the witness could remember having purchased from the defendant. Witness bought the "bearing" from the defendant two or three days before, about eight o'clock in the morning, together with about twenty pounds more of old iron and brass.

Cross-examined, the witness said that when he made the purchase he asked the defendant where he got the bearing. The defendant said that he found it near the penitentiary. Quite a number of persons be

sides the defendant were engaged in the sale of scrap iron and brass at the time, and the witness and his father often purchased from them. Witness' father's mill was one of the most public places in the town of Huntsville.

The defendant's father was his first witness. He testified that the defendant was born on the sixteenth day of October, 1869.

J. D. Clarke was the second and the last witness for the defendant. He testified that he was the proprietor of Clarke's mill, near the depot, in the town of Huntsville, Walker County, Texas. He was acquainted with J. L. Smith, and remembered the occasion of Smith's visit to his, witness', mill, about two years before this trial, in search of scrap brass, which he claimed to have missed from his mill. Among the articles Smith identified and claimed was a brass "bearing." Smith said

to the witness that he believed that the party who took the "bearing" either had a key to his mill, and entered and took it at night, or else he took it in the day time, while he, Smith, was at work. Witness' son bought quite a quantity of brass about that time from various parties. Smith at the same time was engaged in the business of buying scrap iron and brass.

S. P. Montgomery was next introduced by the State, in rebuttal. He testified that George Ross, the father of the defendant, lived on his place during the years 1867 and 1868, and that the defendant was born while George Ross lived on that place.

Incorrectness of the charge of the court in various particulars, including that considered in the opinion, and the sufficiency of the evidence to support the conviction, were the grounds assigned for new trial.

McKinney & Leigh, for the appellant.

J. H. Burts, Assistant Attorney-General, for the State.

WHITE, P. J. This appeal is from a conviction for burglary. Two grounds were submitted in the motion to quash the indictment: 1. Because the indictment does not allege that the house charged to have been entered was in the county of Walker. 2. It does not allege that the goods and chattels intended to be stolen (after entry) were in the house alleged to have been entered, nor to whom said goods and chattels belonged.

The indictment filed in said cause is as follows: "In the name, and by the authority of the State of Texas, the grand jurors in and for Walker County, State of Texas, legally selected, drawn, tried, impaneled, sworn and charged at the May term, A. D. 1882, of the District Court of Walker County, State of Texas, upon their oaths, in said court do present that Edgar Ross, in Walker County, State of Texas, on the tenth day of May, A. D. 1882, that is to say in the night time of said tenth of May, A. D. 1882, did by force break and enter the house of J. L. Smith, without the consent of said J. L. Smith, and with the intent to fraudulently take, steal, and carry away from the possession of J. L. Smith and out of said house, goods and chattels of the value of $5, corporeal personal property belonging to J. L. Smith, without the consent of J. L. Smith, and with the intent to deprive said J. L. Smith, the owner of said goods and chattels, of the value of the same, and to appropriate it to the use and benefit of him, said Edgar Ross; against the peace and dignity of the State."

If in

We think it is apparent that the objections are not well taken. Walker County defendant broke and entered the house of J. L. Smith, as is charged, we can not well see how it was possible for him to do so if the house was not in Walker County. And the same may be said

with regard to the allegation respecting the goods and chattels. It might, perhaps, have been better and more specific to have charged that the goods and chattels were in the house, but we are of opinion that the allegations are substantially sufficient as made, and that the court did not err in overruling the motion to quash.

One of the paragraphs of the charge of the court to the jury which is excepted to is 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."

This charge is erroneous. To constitute burglary, the entry must be by "force," ," "threats," or "fraud," whether committed in the day time or at night. This identical question is discussed in Hamilton v. State, and it was held that the definition of entry " in article 706, makeing it include in its meaning "every kind of entry but one made by the free consent of the occupant or of one authorized to give such consent," did not eliminate from the offense the element of "force," nor dispense with the necessity of alleging and proving an entry by "force." If the entry is at night, the slightest force to effect it will suffice.

We are of opinion that the evidence is not sufficient to support the verdict and judgment. Clarke, the party from whom Smith got the articles alleged to have been stolen from his mill, was only able to identify one of the articles, viz, "a brass bearing," as an article which he had purchased from the defendant. He states that when he pur

chased that "brass bearing" from the accused, he, Clarke, asked defendant where he had got it, and that defendant stated that he had found it up near the penitentiary. This statement of the defendant, made at the time he was first found in possession of the stolen property, was altogether natural and reasonable, when considered in connection with the other evidence in this case, and it devolved upon the State to show that it was false.3 This the evidence adduced by the State wholly fails to do.

For the errors indicated, the judgment is reversed and cause is remanded.

1 Penal Code, art. 704.

2 11 Tex. (App.) 116.

Reversed and remanded.

3 Garcia v. State, 26 Tex. 209; Galloway

v. State, 41 Tex. 289; Johnson v. State, 12 Tex. (App.) 385.

BURGLARY-ENTRY AT NIGHT MUST BE CLEARLY PROVED.

WATERS v. STATE.

[53 Ga. 567.]

In the Supreme Court of Georgia.

The Evidence in Burglary must exclude all reasonable doubt that it was committed in the night time. Where the evidence is evenly balanced there must be an acquittal.

TRIPP, J. The proposition is unquestioned, that in all criminal pros. ecutions, it is incumbent on the State, on the traverse trial, to show affirmatively, either by positive testimony or other satisfactory evidence, that the defendant is guilty of the offense charged against him or of some less crime which the law permits him to be found guilty of under the indictment. This rule applies to an indictment for burglary in the night. It was but a few years ago that this offense was punishable with death, or, by special recommendation of the jury, by imprisonment for life, whilst the penalty for burglary in the day was imprisonment for three to five years. Now, the penalty for the former is imprisonment from five to twenty years; for the latter it is unchanged. Would it be going too far to say that when one is prosecuted for burglary in the night, the testimony should be such as to the time when it was committed as to exclude all reasonable doubt upon that point, before a verdict of guilty could be authorized? If there had been no change in the penalty, and that was yet a capital one, the rule would scarcely be doubted. As it is, the maximum for one grade is twenty years in the penitentiary; for the other, five years.

Where the evidence leaves the time in which the offense was committed exactly balanced between day and night, that is, that it was committed within the period of about forty or forty-five minutes, one-half of which was day and one-half was night, the defendant should have the benefit of the doubt necessarily arising, and the conviction should not be for the highest grade. If a jury reasonably doubt whether a defendant be guilty of murder or manslaughter, that doubt is resolved in favor of life. So, if the doubt be as to different grades of manslaughter, the defendant should have the benefit of it, and the lowest grade covered by that doubt is to be found. It would be difficult to limit the application of this principle, and we think it should control this case. The chief evidence against this defendant was the fact that he was in posesssion of the watch, which was taken from the house several days after

1 Rev. Code, secs. 4321, 4322.

the burglary was committed. I will not remark upon the character of such testimony, whether it is always sufficient to convict, for the authorities are somewhat in conflict; but we say, that, under the proof in this case, we think the defendant should have the full benefit of the first rule we announce in this decision.

Judgment reversed.

BURGLARY-DWELLING-HOUSE.

STATE V. POTTS.

[75 N. C. 129.]

In the Supreme Court of North Carolina.

If a Person who Sleeps in a part of a storehouse communicating with the part used as a store is not the owner, or one of his family or servants, but is employed to sleep there solely for the purpose of protecting the premises, he is only a watchman, and the store is not a dwelling-house.

RODMAN, J. There is no statute in North Carolina changing the com mon-law definition of burglary, which is: The breaking and entering of the dwelling-house of another in the night time, with intent to commit a felony therein. The question in this case is : Was the house into which the prisoner broke and entered, the dwelling-house of the prosecutor, Davis? The house belonged to Davis, and was used as a store; a small space was partitioned off from the store-room for a bed-room, and it had been occupied as such regularly for about four years, either by Davis or by some clerk, or other person by his license. It was slept in on the night of the breaking, and had been, on every night for a month before that night, by one Lamb, who was employed by Davis to sleep there for the purpose of protecting the premises. Lamb was not a member of the family of Davis, nor employed by him otherwise than as stated.

The Attorney-General relied on the State v. Cutlaw.1 That case can only be distinguished from the present by the fact that Harris (the person who slept in Cunningham's store) was a clerk of Cunningham and boarded in his family. It was evident that he slept in the store for the protection of the premises. We do not doubt the decision in that case. The differences between that case and the present may seem very slight, yet if they be such as are recognized by the authorities from which we derive the law on this subject, we are bound to recognize