Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 276
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276 FRANCO v. THE STATE. [Term of
Statement of the case.
CONCEPTION FRANCO v. THE STATE.
1. BURGLARY. An entrance into a house of any part of the body however
small, is an entry sufficient to warrant conviction for burglary, provided
that the intention be to commit a felony, and the other statutory
requisites of burglary be present.
2. BURGLARY-INTENT. Where the testimony showed that the accused,about
four o'clock in the morning, had raised the window in the dwelling of
an aged lady, and was holding it up with his hand in such a way that
his fingers were within the house, his elbows resting on the sill of the
window, his body outside of the house, when some of the inmates hearing
the noise and approaching, he suddenly dropped the window and
fled, there being valuable property in the house, and no excuse being
given or other known object, such entry, and the circumstances, are
sufficient from which the jury may find the felonious intent; and a
verdict of guilty is supported.
APPEAL from Victoria. Tried below before Hon. T. C.
The testimony for the State is sufficiently shown in the
opinion. An ineffectual effort was made by defendant to
prove an alibi.
Philips, cLackay & Stayton, for appellant.
The testimony does not show, nor tend to show, anything
more than a trespass. That includes but one of the elements
necessary to constitute the offense of burglary.
The testimony may be considered sufficient to show the
"breaking," but not to show an "entry" within the meaning
of the statute. To place the most liberal construction in favor
of the State on all that was done, that acts done by the party
were preparatory only for the purpose of making an opening
through which he might afterwards make an entry that would
Again, the entry, whether actual or constructive, must be
with intent to commit a felony, and that, too, the one charged
in the indictment. This is well illustrated by the instances
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/284/: accessed April 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .