Foster v. State , 110 Tex. Crim. 594 ( 1928 )

Conviction for burglary; punishment, two years in the penitentiary.

There seems no question from the testimony but that appellant, acting with others, burglarized the house in question. Appellant did not testify, but his written confession was introduced. No bill of exceptions appears in the record. The motion for new trial filed by appellant simply says that the verdict and judgment are contrary to the law and that the evidence is insufficient to sustain the verdict and judgment. The contention of appellant on this appeal is that the evidence is insufficient because, as he insists, the indictment charged an ordinary burglary, and the evidence showed the burglary of a private residence.

There is testimony in the record showing that Ira L. Guffey, the alleged owner of the burglarized house, did live in said house with his family, and that same was therefore his residence, but no showing is made in this record that the house so burglarized was exclusively used for the purpose of a residence. For aught we know from the record the building may have been used for one or more other purposes. In the absence of any testimony supporting the contention of appellant that this house was exclusively used for residence purposes, and following the opinions of this court heretofore rendered, we find ourselves unable to agree that the case should be reversed upon the contention made. Alinis v. State, 63 Tex. Crim. 272; Alinis v. State, 63 Tex.Crim. Rep.; Shornweber v. State, 70 Tex.Crim. Rep..

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.