Waterhouse v. State

21 Tex. Ct. App. 663 | Tex. App. | 1886

Hurt, Judge.

This is an appeal from a conviction for burglary. If the defendant was a domestic servant of the owner of the house, the conviction cannot stand, for in such case the statute (Penal Code, Art. 714) requires that there shall be an actual breaking, and the evidence found in the record does not show such a breaking.

Was he a domestic servant? The wife of the owner of the house, a witness for the State, testified that “the defendant was employed by her husband to do farm work; that he would bring water, make fires, and do any thing about the house for them that he was required; he did not sleep or eat in the house that was entered.” The owner of the house testified that he “hired defendant at the sum of ten dollars per month; that defendant would make fires, bring water in the dwelling house of witness and family when told to do so; that he was hired asa farm hand, and slept in the gin house at night, and ate his meals in the dining room or kitchen, which was separated from the house tha,t was entered.”'

Opinion delivered June 25, 1886.

The article of the code we have cited uses the terms “a domestic servant or other inhabitant of such house,” and the Supreme Court, in Wakefield v. The State, 41 Texas, 558, says: “These terms do not extend to a servant whose employment is out of doors, and not in the house,” and quote with approval the definition in Bouvier, that “ domestics are those who reside in the house with the master they serve.” Now, very clearly the defendant did not reside in the house with his employer. He did not eat or sleep there; and the fact that, on occasion, when bidden to do so, he brought water or made fires in the house, does not make him a domestic within the meaning of the statute, his employment being as a farm hand. He had no right to enter the house, such as is conceded to domestics by the law.

The judgment is affirmed.

Affirmed.