Handy v. State , 46 Tex. Crim. 406 ( 1904 )

Appellant was convicted of the burglary of a private residence at night, the punishment assessed being confinement in the penitentiary for a term of thirty years. The proof shows that J.T. Strong with his family resided in the house burglarized, and were actually using the same as their private residence. However, the proof shows that Strong and his family were absent on a visit at the time the house was burglarized; that no one was in the house at the time; that he and his family left the premises on Friday and did not return until Monday following; and that the house was entered by appellant on Saturday night. Appellant contends that the court erred in submitting to the jury the law applicable to the burglary of a private residence under this state of facts. His contention is that the house was not "occupied and actually used" at the time of the offense by Strong and family. Art. 845c, White's Ann. Pen. Code, addended, 1901 (being Act 26th Leg., p. 318), provides: "The term `private residence' mentioned in articles 839a, 845a and 845b of this chapter shall be construed to mean any building or room occupied and actually used at the time of the offense by any person or persons as a place of residence." We hold that it is not necessary that the family be personally present at the very time it is burglarized in order to constitute the offense of burglary of a private residence. It is sufficient if it is actually used at the time as a private residence, within the meaning of this article, though at the time it was burglarized the family may be temporarily absent.

Appellant insists that the verdict of the jury assessing the penalty at thirty years confinement in the penitentiary is cruel and excessive. "The punishment for burglary of a private residence shall be by imprisonment in the penitentiary for any term of years not less than five." Art. 845a, White's Add. Ann. Pen. Code, Acts 26th Leg., p. 318. The Constitution, article 1, section 13, provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. The Legislature has seen proper to provide that the punishment for burglary of a private residence at night should not be less than five years, and we do not consider the verdict of the jury cruel or excessive. Teague v. State, 4 Texas Crim. App., 147; Johnson v. State, 5 Texas Crim. App., 423; Drake v. State, 5 Texas Crim. App., 649; Williams v. State, 6 Texas Crim. App., 147; Smith v. State, 7 Texas Crim. App., 414.

Appellant also insists that the evidence is insufficient. While it is circumstantial, yet it is amply sufficient to warrant the conviction of the jury, and we will not disturb their finding. The other complaints in the motion for new trial can not be reviewed in the absence of bills of exception.

The judgment is affirmed.

Affirmed.