Peters v. State

26 S.W. 61, 33 Tex. Crim. 170, 1894 Tex. Crim. App. LEXIS 70

• Court: Court of Criminal Appeals of Texas
• Decided: April 14, 1894
• Docket: No. 402.
• Status: Published

Opinion

SIMKINS, Judge.

Appellant was convicted of burglary, and bis punishment assessed at two years in tbe penitentiary.

Appellant resided in a livery stable. Adjoining bis room, and within tbe same building, was an oat bin, tbe entrance to wbicb was a small door, wbicb was raised by any person getting oats. It was unlocked. The bin contained oats belonging to other parties, who rented other portions of tbe livery stable. At midnight appellant raised tbe door and took out some oats, of tbe value of forty cents, and fed to bis borses. Was it burglary? Under our code there is quite a difference between an unlawful entry into a bonse made by a domestic servant or inhabitant thereof, and that made by a stranger. To constitute burglary on the part of a domestic servant or inhabitant of the house, there must be an actual and not a constructive breaking. (Penal Code, art. 714), while on the part óf a stranger a constructive breaking is sufficient, as by lifting a latch, or raising a window, or opening a door. Id., art. 708. The law applies as well to the inner as the outer door. Anderson v. The State, 17 Texas Crim. App., 311. The evidence clearly shows that the appellant was an inhabitant of the livery stable. Wakefield’s case, 41 Texas, 558. Therefore his lifting the door of the bin would not constitute the actual breaking required by the law to constitute burglary under the code.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.