Mays v. State , 50 Tex. Crim. 391 ( 1906 )

Appellant was convicted of burglary in the night-time, and his punishment assessed at four years confinement in the penitentiary; hence this appeal. Appellant insists that the proof shows that the burglary committed was of a private residence, but under the indictment, which was simply an allegation of a burglary of a house at night, appellant could not be convicted, inasmuch as the burglary of a private residence is a distinct offense with a different punishment. The proof showed that at the time of the alleged burglary the building charged to have been burglarized was a school dormitory, in the general charge of the superintendent, David Abner, and that Asia Minor Williams, had special charge of the dormitory. The dormitory was a three story building. The room burglarized was occupied by Beulah Johnson, Cora Eugene and Asiline Eugene. The goods taken were Beulah Johnson's personal property. We think under the decisions that this was a private residence, the burglary of which has been held to be a distinct offense from the burglary of a house merely. "Residence" means a place of abode, where a person lives. 7 Words Phrases, Residence. This was evidently the living place of the occupants. The room itself was the home of those who occupied it. Under our decisions there is no question but that this was a private residence. Holland v. State, 74 S.W. Rep., 763; Cleveland v. State, 61 S.W. Rep., 492. The indictment should have been framed under the amended statute relating to the burglary of a private residence.

We further believe that inasmuch as the proof shows burglary of the particular room occupied by Beulah Johnson, the ownership should have been laid in her; and especially of the goods which were in her personal possession and charge. In addition to the questions above discussed, appellant has filed a brief, in which he discussed other questions relating to the admission of testimony. These matters are not presented in separate bills, but occur in the stenographic transcript of the facts adduced, and are not in such condition to be reviewed.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.