Sikes v. State (312 S.W.2d 524, 1958)

DICE, Commissioner.

The conviction is for Burglary of a private residence at night; the punishment, five years.

The State’s testimony shows that the prosecuting witness, L. A. Voglesang, and his wife, both of whom were aged, resided in their residence in the City of Rosenberg. On the night in question, after they had retired, Mrs. Voglesang was awakened around midnight by the sound of breaking glass in the front of the house. She then awakened her husband and after securing a pistol and placing it in his hand, heard someone raise a window in the back and enter the house. Mrs. Voglesang then left the house to secure help. Thereafter, upon seeing a man coming toward him, Mr. Vo-glesang fired one shot with the pistol and engaged the man in a struggle. As the two were struggling on the floor Assistant Chief of Police Ray Owens arrived at the residence and took the man, whom he identified as the appellant, in custody as he was attempting to flee.

As a witness in his own behalf appellant admitted that he entered the residence on the night in question by raising the window but denied that he had any intention to steal. He stated that he had been drinking, that he was intoxicated, and that he was going to see a girl and had entered the wrong house.

Appellant questions the sufficiency of the evidence to support the conviction on two grounds.

First, he insists that there is a fatal variance between the allegation and the proof as to the name of the person whose private residence it was charged he burglarized. Appellant insists that the name of the owner of the residence was alleged in the indictment as “L. A. Vogelsang” and that the witness testified upon the trial that his name was “L. A. Vogelsand”. An examination of the record does not reflect that the injured party so testified but did testify that his name was