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: 277
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1875.] FRANCO v. THE STATE. 277
Statement of the case.
given in Art. 2362, P. D. If the arm be introduced (if the
felony charged be theft), it must be so introduced for the purpose
of taking from the house the property he intended to
steal, and not alone for the " breaking." If the entry be made
by the introduction of any instrument into the house, such
introduction must be made with the intent and for the purpose
of committing the felony by that particular act. To illustrate:
Suppose a party ultimately to commit a burglary, after
he had effected a breaking, should, in the act of breaking a
door, insert in the walls of a house the end of a crow-bar, his
intent by that act, at that time, being only to " break," that he
might afterwards " enter," such introduction of the instrument,
in a legal sense, would not be an entry, as there was no
intent by that act to commit the felony. In such case, the
locus poenitentie would exist, and another step would have to
be taken in the commission of the offense before his act would
become a crime. Take the case referred to in Art. 2363, P. D.
In this case, the hand was introduced for the purpose of drawing
out the property through an aperture made by the offender
for that purpose. If the hand were introduced in the mere
act of breaking, with no intent, at the time of breaking, by that
act to commit the felony, the offense would not be complete,
for the entry was not made with intent and for the purpose
of committing the felony; but for the sole purpose of " break"'
ing," which in itself is not a felony. We submit, therefore,
that the proof in this case does not show that there was a burglarious
entry as defined by our statute. In the case of the
State v. Robinson, 32 Texas R., page 163, Justice Lindsay says:
In all cases, the entry must be with felonious intent, which
intent is manifested after the entry by the actual attempt, or
the commission of some specified felony, which ought to be
charged in the indictment according to the facts of each case.
In this case it is charged that the entry was made with the
intent to commit the offense of theft from a house. It was
necessary to aver the particular felony intended, and the proof
should have sustained the averment: "and this intent must
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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/m1/285/: accessed October 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .