41 Tex. 43 | Tex. | 1874
The defendants were convicted of the theft of a pistol, proved to be of the value of ten dollars, “from and out of the tent of the said W. C. Porter, said tent being then and there a house,” as the same was described in the indictment. The evidence was that the pistol was in a trunk in a tent, which was in a wagon-yard, situated three and one-half miles from Denison; that Porter’s family lived in Denison, but that he and one Davis lived in the tent'while attending to the wagon-yard; it consisted of two forks driven in the ground "with a ridge-poll, across which was stretched a piece of ducking; this was closed at one end by another piece of cloth hung up, and was open at the other and.
It is provided in the Code (art. 2409, Pas. Dig.) that “if any person shall steal property from a house in such manner as that the offense does not come within the definition of burglary, he shall be punished by confinement in the penitentiary not less than two nor more than seven years.”
The court charged the jury that “the term house means a building, edifice, or structure for the habitation of man; a dwelling-place or abode for any of the human species. A tent is a pavilion or portable lodge, consisting of canvas or other coarse cloth stretched and sustained by poles; and if used at the time of the alleged offense as a dwelling or abode for any human being, it would be a house.”
This charge constrained the jury to find that the tent was a house, if they believed from the evidence that persons lived in it. About that fact there could be no question under the proof in the case.
The question then is, was this a correct charge? In the chapter of the Code which treats of burglary a house is de
The chapter on theft docs not define the term “house” out of which the stealing of property is made a felony. The attempts at a definition above cited are obviously loose and indefinite. It is evident, however, that the Legislature in passing the Code had in view other structures, such as tents, open sheds, ships, steamboats, flatboats, and even rafts, in contradistinction to houses, although, as it is well known, persons may and do live, sleep, and eat in all such structures. This will suffice to show that every structure" which is used for the time for the purposes for which a house is used, as for living, sleeping, and eating in, are not necessarily houses in contemplation of the law.
It is provided in the Code of Criminal Procedure that “ all words and phrases used in this Code are to be taken and understood in their usual acceptation in common language, except where their meaning is particularly defined by law.” (Pas. Dig., art. 2516.)
Under the rule here prescribed there is no difficulty in deciding this case.
Such a structure as that described by the witness would in common language be .called, as it was called by the witnesses, a tent; never a house. It is not necessary in this case to make the effort to determine the exact point
It may bo contended that the reason is as strong for protecting one’s property from theft, by increased punishment, who lives in a tent, as that of one who lives in a house. Upon that there may be a difference of opinion. But if it be admitted, it does not follow that criminal prosecutions will follow the reason of the law from an instance specified to one not specified, to which it might equally apply, especially when both were in the legislative mind, and one was expressly provided for and the other not.
The defendants having appealed to this court, and assigned errors as to the charge of the court and the insufficiency of the facts to sustain the verdict, we are of opinion that the court erred in the charge, and that the facts proved did not justify a conviction of theft from a house under the Code. (Pas. Dig., art. 2409.)
Reversed and Remanded.