139 S.W. 980 | Tex. Crim. App. | 1911
Appellant was indicted, charged with the offense of burglary, that he entered the house by force with the intent to steal. He was convicted and sentenced to two years' confinement in the penitentiary, from which judgment he has appealed to this court.
The appellant contends that the facts show that the house burglarized was a private residence and as the burglary was committed in the night-time he should have been prosecuted under article 839a instead of article 838. It has been held by this court that the offense denounced in article 839a is a separate and distinct offense, and if the facts show a violation of this article of the statute, a conviction under article 838 would not be justified. Martinus v. State, 47 Tex.Crim. Rep., 84 S.W. Rep., 831; Mays v. State, 50 Tex.Crim. Rep., 97 S.W. Rep., 703, and if the room burglarized in this case is to be construed to be a private residence, then of course this conviction can not stand. In Holland v. State,
Neither did the court err in permitting the State to prove that a clock and watch were stolen out of the room after entry had been made by force. The evidence supports the verdict.
The judgment is affirmed.
Affirmed.
[Rehearing denied, October 11, 1911. — Reporter.]