
    DOUGLAS v. STATE.
    (No. 5964.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1920.
    Rehearing Denied Dec. 8, 1920.)
    1. Burglar^ <s=59(J/2) — One not having free access to room or house not “domestic servant.”
    One whose duties do not entitle or require of him free access to the house or room which he burglarized is not a domestic servant or inhabitant of such house or room, within the purview of Pen. Code 1911, art. 1319, which requires an actual breaking in order to constitute burglary by a domestic servant.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Domestic Servants.]
    2. Burglary <®=»4 — Stockroom held a “house” under burglary statute.
    A stockroom situated on the sixth floor of a building, used and occupied by a dry goods company, walls of which were made of wire and beaver board, was a “house” within the meaning of the burglary statute.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, House.]
    3. Burglary <®=»46(I)— Evidence not sufficient to raise issue of domestic servant.
    In a prosecution of a janitor for burglary of a stockroom, evidence 7iel<i insufficient to raise the issue of domestic servant, upon which a special charge was requested by defendant.
    On Motion for Rehearing.
    4. Burglary <§=>9(1/2) — House porter a> “domestic servant.”
    A house porter whose work lies within a building or part of a building is a domestic servr, ant of the building or part thereof within the meaning of Pen. Code 1911, art. 1319, which requires an actual breaking in order to constitute burglary by a domestic servant.
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    Will Douglas was convicted of burglary, and be appeals.
    Affirmed.,
    Tom Lea and J. A. Dial, both of El Paso, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted of burglary in the Thirty-Fourth district court of El Paso county, and his punishment fixed at two years’ confinement in the penitentiary. The alleged burglarized house was a stockroom situated on the sixth floor of a building used and occupied by the Popular Dry Goods Company, in the city of El Paso. Two walls of this stockroom were made of wire and beaver board. From the evidence there was an aperture at the top of one of said wire walls', 12 or 14 inches high. It is also in evidence that since the building of said stockroom some months before this trial, some one had pulled a whole panel of beaver board loose, and that through this space, one might enter said stockroom. It further appears that on one occasion in May, 1920, after the other employees had gone, at about 7 o’clock at night, the watchman who was in said building, while making his round on the sixth floor, heard a noise in the stockroom, and, looking through the wires, saw the appellant sort of stooping down, hiding himself under the shelving inside of said room. This witness asked him what he was doing up there, and appellant replied that he was at work on the fifth floor, and heard some one walking on the sixth floor, and went up to see about it. The watchman told appellant that it was not his business to come up there, and that he should have reported the matter to the watchman. The stockroom door was locked at that time, but it seems that it could be opened from the inside without a key and the watchman had appellant open the door and come out. After searching appellant, the watchman carried appellant down, and the next day reported the matter to the manager. The watchman testified that he found nothing on appellant, but saw a box of shirts close to where he was hiding.

Mr. A. Schwartz, for the state, said that he and Maurice Schwartz employed all the help in said store, and told them what to do, that they had a porter or janitor for each floor of said building, and that appellant was such janitor or porter for the fifth floor. This witness further stated that appellant was head porter only in the sense that he had a key to a room where were kept towels and paper for the use of the porters in the mornings when they went to clean up; but that appellant had no charge of the other porters, and no supervision over them; that his duties were cleaning, sweeping, washing windows, show cases, etc., on the fifth floor of the establishment. There was no evidence whatever Showing on what floor was the room in which the paper and towels for the use of the porters were kept. That said room was not the stockroom is clear from the record ; it being in testimony that appellant did not enter the stockroom by the use of a key, but that he entered through or over the wall.

Mr. Kiser testified that he had been connected with the Popular Dry Goods Company for 10 years, and was manager for the receiving department and stockroom at the time of this alleged burglary, and that as such he had entire charge of the stockroom and the distribution of its contents; that appellant had no permission from him to enter the stockroom at any time; that appellant was head porter for a while, and had occasion to come to witness for supplies for the porters, such as soap, mops, etc., which were furnished him by witness, but that appellant did not work in the stockroom; that witness usually closed and locked the. door of the stockroom about 10 minutes after 6 in the afternoons.

We have tried to give all the evidence bearing on the issue of domestic servant, inasmuch as this is the only question raised and presented here by the appellant. When the evidence had closed, appellant made a motion for an instructed verdict, upon the ground that he was a domestic servant, and the evidence had not shown an actual breaking of the burglarized premises. He also asked a special charge, presenting to the jury the law of a burglary when committed by a domestic servant, and also reserved an exception to the main charge, because same failed to submit the law of burglary by a domestic servant. In order to dispose of these contentions, we have examined this record very carefully, in an effort to discover whether or not the evidence raised the issue as to whether appellant was a domestic servant, or an inhabitant of the alleged burglarized house, to wit, the stockroom. We fail to find anything supporting such claim. The case of Jackson v. State, 43 Tex. Cr. R. 260, 64 S. W. 864, seems to present an almost parallel state of facts. Jackson was a porter in a hotel, in the same building with which, and also under the same management, was a saloon, same occupying one room of the hotel building. Jackson’s duties were to scour the floors, sweep and clean up the corridors of the hotel, but not of the saloon. He was charged with burglary of the saloon, and claimed that the law of domestic servants was applicable, and that he was not guilty, because the evidence did not show an entry by actual breaking. This court, speaking through its present presiding judge, held that Jackson was not a domestic servant as to the saloon, and that the refusal to submit the? issue of domestic servant in that case was correct. The court said in its opinion that the evidence did not connect Jackson with the saloon as a servant in any manner whatever ; that the fact that he was employed by the hotel management to scour the floors of the hotel, and to wash the spittoons and clean the corridors of the hotel, did not connect him with the saloon, though in a room of the same building. “The mere fact that the saloon belonged to, or was controlled by the management of, the hotel, and that appellant was a servant in the hotel, does not constitute him a domestic servant in relation to the saloon, any more than if the saloon had been rented to third parties.”

We are of opinion that one whose duties do not entitle or require of him free access to the house or room in question is not a domestic servant or inhabitant of such house or room, within the purview of article 1319 of our Penal Oode, which requires an actual breaking, in order to constitute burglary by a domestic servant. No duties of appellant lay in the stockroom in question, and the most that could be claimed for him in this behalf is that, when supplies for the use of the porters were needed from time to time, he made his request known to Mr. Kiser, who had charge of the stockroom, and who furnished him such supplies therefrom. Many authorities hold that one whose duties lie outside of the house of his employer is not a domestic servant, even though he may be called on to perform some occasional service in such house. Waterhouse v. State, 21 Tex. App. 663, 2 S. W. 889; Williams v. State, 41 Tex. 649; Jame v. State, 63 Tex. Cr. R. 559, 40 S. W. 1086; Jackson v. State, 43 Tex. Cr. R. 260, 64 S. W. 864. That the stockroom in question was a house within the meaning of our burglary statute is evident. Anderson v. State, 17 Tex. App. 305; Jame v. State, supra.

The evidence failing to raise the issue of domestic servant, in our opinion, this disposes of all the contentions made by tbe appellant.

Finding no error in tbe record, tbe judgment of tbe trial court is affirmed.

On Motion for Rebearing.

In bis motion for rebearing appellant contends that under tbe testimony of Mr. Kiser, a witness for tbe state, who bad charge of tbe stockroom on tbe sixth floor, which was tbe room alleged to have been burglarized, tbe issue of domestic servant was raised. The following statement of Mr. Kiser is quoted in said motion as being that which principally raises said issue:

“He bad occasion to enter the stockroom. He had charge of the janitors for five or six months, and he used to come up and ask me for supplies for the house, such as mops, soap, and things used in the store, but he didn’t work •in the stockroom. He came to ask for stuff he needed to do his work in other parts of the building.”

This quotation seems to us to show tbe opposite to what appellant claims for it, and, taken with other parts of tbe record, makes it plain that appellant’s work and duties lay in other parts of the building, and that bis only occasion for going to tbe stockroom was when Mr. Kiser was there, and then only to ask and receive from Mr. Kiser articles for use in that part of tbe building where lay appellant’s work. His attitude was that of an outside servant or employee who has occasion to go to the residence or storehouse of bis employer for articles to be used in tire outside work; or of one who went to a nearby place to that of bis employment for necessary articles for use in such place of employment. Mr. Kiser, in said quotation, speaking of tbe character of appellant’s visits to tbe stockroom, said:

“He came to ask for stuff he needed to do his work in other parts of the building.”

Mr. Schwartz, who employed appellant and prescribed his duties, testified:

“He had no business on the sixth floor. We have a porter for each floor. He was not the porter on the sixth floor.”

Nothing in tbe testimony of the witness Juaregi indicates that appellant bad any business on the sixth floor. This witness was tbe watchman who found appellant in tbe stockroom on tbe sixth floor on tbe night in question, and asked him what he was doing up there, and told him it was not bis business to come up there.

Our attention is called in tbe motion to certain authorities urged as sustaining appellant’s contention, that the evidence raised the issue of domestic servant, and that, therefore, the law thereof should have been charged. Coleman v. State, 44 Tex. 109, is cited. We find no such case. Phillips’ Case, 42 S. W. 557, is a theft case decided on the point of ownership claimed by the state to be in the alleged owner, and by the appellant to be in another. The issue was as to whether the other person was the servant of -the alleged-owner or not, and the decision sheds no light on the point in the instant case. We are in accord with the Taylor Case, 42 Tex. 387, in the view that a house porter whose work lies within a building, or part of a building, is a domestic servant in such building or part thereof. The Connor Case, 85 Tex. Cr. R. 98, 210 S. W. 208, seems strongly against appellant’s contention. The accused in said case was employed in the alleged burglarized store as a deliveryman. There could be no question of his right of entry into said house. The burglary was at night, and this court said:

“He had no authority in the house at night, and no right to be there by breaking; the breaking was by force from the outside.”

In the instant case appellant was found in the stockroom at night. The trial court submitted only an entry by force, and told the jury that before they could be warranted in finding appellant guilty, they must be satisfied from the evidence beyond a reasonable doubt that the entry was made by force directly applied to the building.

We adhere to the conclusion announced in our opinion, and overrule appellant’s motion for rehearing. 
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