LATTIMORE, Judge.
— The The original opinion was rendered on a misapprehension and is withdrawn. Appellant was convicted in the District Court of Cass County of the offense of blowing up a building by means of gunpowder or other explosive, and his punishment fixed at two years in-the penitentiary.
It is alleged in this indictment that said building was a dipping vat, same being a building not enclosed with walls and covered. Article 1214 of our Penal Code makes the wilful burning of a building which is not enclosed with walls or not covered, an offense which may be punished by confinement in the penitentiary. Appellant moved to quash said indictment because it charged no offense against the laws.
Arson is defined by Article 1200 of our Penal Code, as the wilful burning of a house. The explosion of a house by the use of gunpowder, etc., is made arson by the terms of Article 1205, P. C., Chapter 1 of Title 17 of said Code deals with arson. Chapter 2 of said title deals with “other wilful burnings,” and the first article of this latter chapter, Article 1213 P. C., is as follows: “The rules and definitions contained in the preceding chapter with respect to arson apply also to wilful burnings .under the provisions of this chapter, where they are not clearly inapplicable. ”
Article 1214 next succeeding, is in part as follows: “Burning other buildings, hay, lumber, etc. — If any person shall wilfully bum any building not coming within the description of a house as defined in the preceding chapter, ... he shall be punished by confinement in the penitentiary not less than two nor more than five years; or by fine not exceeding two thousand dollars.”
Two questions here arise: Is the explosion of a building which lacks either walls or a roof, made punishable by Article 1214, supra, and, second, — is a dipping vat a building within the comprehension of said article? The first inquiry addresses itself to the indictment; the second, to the proof. Article 1205 of Chapter 1 of said title is as -follows: “The explosion of a house by means of gunpowder, or other explosive matter, comes within the meaning of arson.”
This lays down a rule applicable to certain cases of explosion and states that if the subject of such, explosion be a house, i. e., a walled and roofed building or structure, the offense is arson. What if the exploded building have walls and no roof, — or vice versa? The answer seems plain by reference to Article 1213, supra, which in terms makes the rules and definitions laid down in Chapter 1 with reference to arson, apply to other wilful burnings, — as defined and punished under Chapter 2, unless “clearly inapplicable.” The wilful burning of a building with walls
and
roof, is arson under Chapter. The wilful burning of a building which lacks
either
walls
or
roof, is “other wilful burning” under Chapter 2. One of said offenses is given a graver punishment than the other, but otherwise the only difference lies in the character of the building; ^therefore if it have walls and a roof, its explosion is arson, but if it lacks either walls or roof, its explosion would be “Other wilful burning.” There seems to us no escape from this plain construction of Article 1213, supra, and so concluding we hold that the indictment charged an offense under Chapter 2 of said Title.
It was not necessary to allege that as a result of the explosion fire was communicated to the building. The law fixes the character of the offense committed when the allegation be that the house or other building be blown up by the use of gunpowder or other explosive, and this is true whether fire is communicated to the building or not. Landers v. State, 39 Texas Crim. Rep., 672. The fact that the building be denominated a dipping vat in the indictment, would not present ground for quashing same," it being clear that no house or building could have its character fixed by a name; nor would the fact that there is no such offense eo nomine as burning or blowing up a dipping vat, justify the quashing of said indictment.
The trial court told the jury in his charge that a dipping vat was a building within our statutes against wilful burning, but that same was not a house, and the exceptions to this charge together with the complaint of the insufficiency of the testimony, present for our consideration the second question above referred to.
The proof showed the dipping vat in question to have been built of cement furnished by the county, the work of erection being donated by citizens of the community in which same was located, and the vat being búilt on land belonging to a Mr. Tollison. Said vat was described in the testimony as being three or four feet wide, six or seven feet deep, and about twenty-seven feet long, the walls and floor being of concrete and sunk in the ground, the upper edge of the walls being near the surface of the soil, the exit end sloping to enable cattle to get out after being dipped. The structure had walls but no roof. Was it a building as contemplated by Article 1214, supra? In Yol. 6 of Cyc, pp. 115-116, appear many definitions of a building, among which we find: “A structure, an edifice, . . . designed for use in the
position in which it is fixed, . . a fabric constructed, a thing built, a structure or edifice enclosing space within its walls.” Many-other definitions will be found in Words & Phrases together with citation to many authorities. The material of which such structure is built is immaterial. That it is a structure less than a house, is evident. That it has walls but no roof, is beyond question. To be a building, or even a house, it need not be above ground, for a basement, a dugout having a dirt floor and roof, a cellar located underground, — have all been held to be houses within the statutes making entry of a house, burglary. The structure of the vat in question is such that it has walls and a floor of cement; space is enclosed by the walls; a wider space and a roof and same could be a house fit for human habitation. In our opinion said structure was beyond doubt a building within the meaning of that term in Article 1214, supra, and one whose explosion would be punishable thereunder. There was no controversy as to the structure of the vat, and the assumption of uncontroverted facts in the charge was not erroneous. If there had been conflicting testimony regarding the fact that said structure had walls and enclosed space and only lacked a roof, such assumption of fact might be erroneous.
There is complaint at the charge for telling the jury that if they believed said vat was then and there on premises in the possession of Jeff Tollison, occupied by Jeff Tollison, etc., they should find appellant guilty. No issue affecting the unlawful quality of the act of appellant, turned upon or was in any way affected by said charge. The land upon which said vat was located belonged to Tollison, and he had made no deed to Cass county therefor. Ordinarily in the absence of some written agreement to the contrary, any construction entering the soil becomes a part of the realty. The charge was not erroneous for its failure to submit to the jury the question of ownership in Cass county, or in Cass county and Tollison. Ownership of a burned building may be proved by oral testimony. Wylie v. State, 34 Texas Crim. Rep., 515; Hester v. State, 51 S. W. Rep., 932; Anderson v. State, 71 Texas Crim. Rep., 27, 159 S. W. Rep., 847.
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LATTIMORE, Judge.
— The The original opinion was rendered on a misapprehension and is withdrawn. Appellant was convicted in the District Court of Cass County of the offense of blowing up a building by means of gunpowder or other explosive, and his punishment fixed at two years in-the penitentiary.
It is alleged in this indictment that said building was a dipping vat, same being a building not enclosed with walls and covered. Article 1214 of our Penal Code makes the wilful burning of a building which is not enclosed with walls or not covered, an offense which may be punished by confinement in the penitentiary. Appellant moved to quash said indictment because it charged no offense against the laws.
Arson is defined by Article 1200 of our Penal Code, as the wilful burning of a house. The explosion of a house by the use of gunpowder, etc., is made arson by the terms of Article 1205, P. C., Chapter 1 of Title 17 of said Code deals with arson. Chapter 2 of said title deals with “other wilful burnings,” and the first article of this latter chapter, Article 1213 P. C., is as follows: “The rules and definitions contained in the preceding chapter with respect to arson apply also to wilful burnings .under the provisions of this chapter, where they are not clearly inapplicable. ”
Article 1214 next succeeding, is in part as follows: “Burning other buildings, hay, lumber, etc. — If any person shall wilfully bum any building not coming within the description of a house as defined in the preceding chapter, ... he shall be punished by confinement in the penitentiary not less than two nor more than five years; or by fine not exceeding two thousand dollars.”
Two questions here arise: Is the explosion of a building which lacks either walls or a roof, made punishable by Article 1214, supra, and, second, — is a dipping vat a building within the comprehension of said article? The first inquiry addresses itself to the indictment; the second, to the proof. Article 1205 of Chapter 1 of said title is as -follows: “The explosion of a house by means of gunpowder, or other explosive matter, comes within the meaning of arson.”
This lays down a rule applicable to certain cases of explosion and states that if the subject of such, explosion be a house, i. e., a walled and roofed building or structure, the offense is arson. What if the exploded building have walls and no roof, — or vice versa? The answer seems plain by reference to Article 1213, supra, which in terms makes the rules and definitions laid down in Chapter 1 with reference to arson, apply to other wilful burnings, — as defined and punished under Chapter 2, unless “clearly inapplicable.” The wilful burning of a building with walls
and
roof, is arson under Chapter. The wilful burning of a building which lacks
either
walls
or
roof, is “other wilful burning” under Chapter 2. One of said offenses is given a graver punishment than the other, but otherwise the only difference lies in the character of the building; ^therefore if it have walls and a roof, its explosion is arson, but if it lacks either walls or roof, its explosion would be “Other wilful burning.” There seems to us no escape from this plain construction of Article 1213, supra, and so concluding we hold that the indictment charged an offense under Chapter 2 of said Title.
It was not necessary to allege that as a result of the explosion fire was communicated to the building. The law fixes the character of the offense committed when the allegation be that the house or other building be blown up by the use of gunpowder or other explosive, and this is true whether fire is communicated to the building or not. Landers v. State, 39 Texas Crim. Rep., 672. The fact that the building be denominated a dipping vat in the indictment, would not present ground for quashing same," it being clear that no house or building could have its character fixed by a name; nor would the fact that there is no such offense eo nomine as burning or blowing up a dipping vat, justify the quashing of said indictment.
The trial court told the jury in his charge that a dipping vat was a building within our statutes against wilful burning, but that same was not a house, and the exceptions to this charge together with the complaint of the insufficiency of the testimony, present for our consideration the second question above referred to.
The proof showed the dipping vat in question to have been built of cement furnished by the county, the work of erection being donated by citizens of the community in which same was located, and the vat being búilt on land belonging to a Mr. Tollison. Said vat was described in the testimony as being three or four feet wide, six or seven feet deep, and about twenty-seven feet long, the walls and floor being of concrete and sunk in the ground, the upper edge of the walls being near the surface of the soil, the exit end sloping to enable cattle to get out after being dipped. The structure had walls but no roof. Was it a building as contemplated by Article 1214, supra? In Yol. 6 of Cyc, pp. 115-116, appear many definitions of a building, among which we find: “A structure, an edifice, . . . designed for use in the
position in which it is fixed, . . a fabric constructed, a thing built, a structure or edifice enclosing space within its walls.” Many-other definitions will be found in Words & Phrases together with citation to many authorities. The material of which such structure is built is immaterial. That it is a structure less than a house, is evident. That it has walls but no roof, is beyond question. To be a building, or even a house, it need not be above ground, for a basement, a dugout having a dirt floor and roof, a cellar located underground, — have all been held to be houses within the statutes making entry of a house, burglary. The structure of the vat in question is such that it has walls and a floor of cement; space is enclosed by the walls; a wider space and a roof and same could be a house fit for human habitation. In our opinion said structure was beyond doubt a building within the meaning of that term in Article 1214, supra, and one whose explosion would be punishable thereunder. There was no controversy as to the structure of the vat, and the assumption of uncontroverted facts in the charge was not erroneous. If there had been conflicting testimony regarding the fact that said structure had walls and enclosed space and only lacked a roof, such assumption of fact might be erroneous.
There is complaint at the charge for telling the jury that if they believed said vat was then and there on premises in the possession of Jeff Tollison, occupied by Jeff Tollison, etc., they should find appellant guilty. No issue affecting the unlawful quality of the act of appellant, turned upon or was in any way affected by said charge. The land upon which said vat was located belonged to Tollison, and he had made no deed to Cass county therefor. Ordinarily in the absence of some written agreement to the contrary, any construction entering the soil becomes a part of the realty. The charge was not erroneous for its failure to submit to the jury the question of ownership in Cass county, or in Cass county and Tollison. Ownership of a burned building may be proved by oral testimony. Wylie v. State, 34 Texas Crim. Rep., 515; Hester v. State, 51 S. W. Rep., 932; Anderson v. State, 71 Texas Crim. Rep., 27, 159 S. W. Rep., 847. The ownership not having been alleged in appellant, the allegation thereof becomes of materiality .only for the purpose of identifying the property destroyed, and the courts will not submit issues involving title, unless the testimony makes it reasonably apparent that the allegation in this regard was misleading and one from which the accused was not put upon notice of the particular offense charged. Wylie v. State, supra.
Part of the descriptive averment in the indictment of the vat was, that it was “a building . . . not enclosed by walls and covered.” Upon his construction of the testimony and asserting a variance between the proof and such allegation, an instructed verdict was asked, by appellant and also special charges upon this issue. Ap
pellant is in error. “A building . . . enclosed by walls and covered,” — must have both walls and a cover, and is a house under the law of arson. “A building . . . not enclosed by walls and covered” is a building which lacks either walls or a roof, and is, therefore, not a house, but is such building as is contemplated by article 1214, supra.
The confession of appellant that on the same night the vat in question was blown up, he blew up other dipping vats, was admissible as showing system, identity and intent, and the admission of such testimony was proper and was correctly restricted in the charge of the court. The refusal of a special charge restricting such testimony to the question only of intent presents no error.
Mr. Hardesty, who was bailiff for the grand jury, was permitted to be in the grand jury room and aid in the examination of certain witnesses. He was not consulted by any member of the grand jury with regard to the presentation of the bill of indictment, nor was he present during any discussion or deliberation of the grand jury with regard to finding same. A motion to quash the indictment based on the presence of Mr. Hardesty in the grand jury room as above stated, was properly overruled. We do not think the practice of having persons other than the grand jury and the State’s attorney present in the grand jury room while witnesses are being questioned, is to be encouraged, but if such presence extend no further than during the questioning of a witness, and it is shown that no consultation or deliberation of the grand jury was had in the presence of said outsider, no error appears. Mr. Branch cites in Sec. 484 of his Annotated P. C. many authorities upon this proposition.
Complaint is made of the omission to instruct in the charge as to the meaning of the word “wilful”. If from the case made by the proof there was any possible defensive issue referable to lack of wilfulness in the blowing up of the dipping vat in question, such omission might be serious, but we are forbidden by Article 743 of our Code of Criminal Procedure to reverse causes for errors in the charge unless same appear reasonably calculated to injure the rights of the accused or affect the fairness of his trial. The blowing up of this dipping vat resulted from no accident or mistake, and the record suggests no reason for same except that of objecting to its presence and use as a means of enforcing the law requiring the dipping of cattle in an effort to exterminate fever carrying ticks.
We have not discussed seriatim the special charges refused, nor all the bills of exception, but our opinion disposes of the contentions raised regarding each and all of them:
Binding no error in the record, the judgment will be affirmed.
Affirmed.