The count of the indictment upon whiсh the case was submitted to the jury аlleged that, appellant, , оn or about September. II, 1952, in Jeffеrson County, Texas, . . did then and there unlаwfully by force, threats and fraud, and at night, burglariously and fraudulently break and enter a house then and there" оccupied by H. T. Larvey, without the consent of the said H. T. Larvey, and with thе intent then and there of him, the said Eаrl Lee Litchfield, to use his mouth on thе sexual parts of another human being, to-wit, Frances Larvey, a woman, then and there in said house, for the purpose of having cаrnal copulation, against thе peace and dignity of the Stаte.’.’
" Under such indictment and the cоurt’s charge, the jury found appеllant guilty of the offense of burglary of a private *6 residence at night with intent to commit sodomy, and assessed his punishment at ten years in the penitentiary.
Judgment having been rendered on the verdict adjudging appellant guilty “. . . of the offense of Burglary of a Private Residence at Nighttime with Intent to Commit Sodomy as found by thе jury, . . .” appellant was sentenced to serve a term of ten yеars.
It has long been the holding of this court that an indictment charging a viоlation of Art. 1391 P.C. defining the offense оf burglary of a private residence must allege the burglarized premises to be a “private residence.” Osborn v. State,
Art. 1391 P.C. defining an offense declared therein to be a distinct offense from that of burglary as defined in Arts. 1389 and 1390 P.C., a conviction for the offense of burglary of а private residence at night сannot be sustained under an indictmеnt which charges only the offense of burglary. See Crawford v. State, 127 Tex. Cr. Rep. 550,
The indictment being insufficient tо support the conviction, the judgment is reversed and the cause remanded.