85 S.W. 798 | Tex. Crim. App. | 1905
Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years. The indictment contains two counts: the first alleging the house to be occupied by Rose Ehrewerth; and the second, the occupancy is alleged in Mrs. J.M. Stevens. Appellant insists the court erred in not requiring the State to elect upon which count it would rely for conviction on the submission of the testimony to the court. The court submitted only the first count, and this eliminates appellant's complaint.
He also insists the evidence is not sufficient to support the conviction, because there was no actual breaking. The testimony shows circumstantially that appellant entered the room through the transom over the door; that there was some kind of curtain over the transom, which was torn away. This, we take it, would be a breaking within the meaning of the law; and is an entry at an unusual place; and makes out a case of burglary.
Appellant further insists he cannot be convicted because he was an inmate of the house. The facts show that the room burglarized was in a boarding house or hotel, and that the prosecutrix had the exclusive management and control of the room; that appellant had no rights therein. It would be as clear a case of burglary to enter without consent a private room in a hotel as any other house. Ullman v. State, 1 Texas Crim. App., 220; Holland v. State, 7 Texas Ct. Rep., 912.
No error appearing in the record, the judgment is affirmed.
Affirmed.