Moore v. State , 48 Tex. Crim. 400 ( 1905 )

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years, hence this appeal.

Appellant complains that the court by its charge instructed the jury to send him to the penitentiary regardless of whether he had prosecutor's consent to enter the house. The charge applied the law to the facts, thus leaving out this feature so far as the direct averment is concerned. However, it states, if the jury believe that appellant by force in the night-time did enter the house occupied by Adolph Sueltenfuss, as charged in the indictment, with the intent to commit the crime of theft, to find him guilty. Now, here is a direct reference to the indictment, and the indictment in this respect charges the entry without the consent of the owner and occupant of the house. Besides in defining the offense, the court directly told the jury before they would be warranted in convicting defendant, they must find that the entry was made without the free consent of the occupant or one authorized to give such consent. We do not understand that the proof raised any issue as to this matter of consent.

It is also contended, the house in question being a chicken house, it could not be said to be occupied by prosecutor. In fact, the proof showed that he occupied the dwelling house and the chickens occupied the chicken house. This it occurs to us is a play upon words. Occupancy here is equivalent to possession. Appellant in that sense is shown to have been in occupation of the entire premises, consisting of thirty acres, and including the house in question. There being no error in the record, the judgment is affirmed.

Affirmed.

[Motion for rehearing overruled without written opinion. — Reporter.]