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: 279
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1875.] FRANCO v. THE STATE. 279
Opinion of the Court.
The act of opening the window being in itself unlawful, an
evil intent will be presumed. (1 Bishop, Cr. Proc., § 521, note 3.)
GOuLD, J. This is an appeal from a conviction for burglary,
the questions presented being, first, was the entry complete,
and secondly, was there sufficient evidence of the intentention
of appellant to commit a theft The evidence is
to the effect that about four o'clock ii the morning, appellant
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 elbow resting on the sill of the
window, and his body outside of the house, when some of the
inmates hearing the noise and approaching, he suddenly dropped
the window and fled. The house contained " property of
"value," and it was testified that there was no enmity existing
between appellant and any of the family. On being
arrested next morning, appellant denied that it was he, and on
the trial an effort was made to establish an alibi; but the evidence
appears sufficient to justify the jury in finding that he
was the man who was detected at the window.
The following are Articles of the Code (Paschal's Digest):
Article 2359. The offense of burglary is constituted by entering
a house by force, threats or fraud, at night, or in like
manner, by entering a house during the day, and remaining
concealed therein until night, with the intent in either case of
commiitting a felony.
Article 2360. He is also guilty of burglary, who, with intent
to commit a felony by breaking, enters a house in the
Article 2361. The entry into a house within the meaning of
Article 2359, includes any kind of entry but one made by the
free consent of the occupant, or of one authorized to give such
consent; it is not necessary that that there should be any
actual breaking to constitute the offense of burglary, except
when the entry is made in the day-time.
Article 2362. The entry is not confined to the entrance of
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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/m1/287/: accessed May 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .