
    (86 Tex. Cr. R. 274)
    CARNEAL v. STATE.
    (No. 5432.)
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1919.)
    1. Burglary <⅞=>6 — Living in house not NECESSARY TO “OCCUPANCY.”
    It is not necessary that there should be some one actually living in the house in order to constitute “occupancy.”
    (Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Occupancy.]
    2. Criminal law ⅜=>594(1) — Denial of continuance FOR ABSENT WITNESSES.
    The court did not err in refusing a continuance on the ground of absence of witnesses, where, diligence'as to one witness was insufficient, and the court states that it was not shown that witnesses would give alleged testimony, and it was evident that the absent testimony would not, if present, have brought about a different result.
    3. Criminal law @=1172(1) — Instructions in prosecution for burglary as to consent HARMLESS.
    In a prosecution for burglary, exceptions to a- charge based' upon the submission of want of consent of the' occupant are not tenaole, where «it is affirmatively shown that the property was taken without consent.
    4. Burglary @=38 — Evidence as to possession of property stolen from outhouse.
    In a prosecution for burglary, there was no error in permitting proof that accused was in possession of a rope stolen from- an outhouse •at the same time the property described- in the .indictment was- taken,from the'house..
    Appeal from District Court, Erath Coun.ty; J. B. Keith, Judge-
    Waiter Carneal was convicted of burglary, ■and appeals.
    Affirmed.
    J. A. Johnson, of Stephenville, for appellant.
    Alvin M. Owsley, Asst; Atty. Gen., for the State.
   MORROW, J.

The conviction is for burglary. This is a companion case to Davidson v. State (No. 5431) 216 S. W. 624.

The indictment in separate counts- charged the house was occupied by W. L. Hunt and O. A. Hunt. It developed that W. D. Hunt; was the owner of the house and that it was his place of abode; that, leaving his household furniture thereto, he had gone to the state of California, with the view that he might locate there in the event he was satisfied. During his absence he requested his brother, C. A. Hunt, to look after the property in his house, and to make it convenient to go to the premises, see that the doors were kept locked, and to ship him the furniture in .the event he wanted it done, and instructed him how to enter the premises. The brother, C. A. Hunt, undertook to comply with this request, and did do so. Based upon these facts, the appellant contends that there was a failure to prove occupancy as charged in the indictment, and also contends that there was' error in refusing to require the state to elect upon which count the prosecution would be maintained. There was a general verdict of guilty.

The prosecution was based upon one transaction, and two counts touching the ownership were inserted to avoid a variance. Gonzales v. State, 12 Tex. App. 657; Dalton v. State, 4 Tex. App. 335; and cases listed in Branch’s Annotated Texas Penal Code, p. 233. The terms “occupancy” and “ownership” are treated in the decisions as synonomous. Pyland v. State, 33 Tex. Cr. R. 382, 26 S. W. 621. The restrictive construction contended for by appellant is not to be given. It was not necessary that there should be some one actually living in the house in order to constitute occupancy.

There was an issue of fact as to- whether the door of the house was open on the occasion of the offense, and there was on this issue a conflict of evidence — several witnesses testifying to having passed the house on various occasions and seen it unlocked or one of the doors open; others testifying that they, had passed it and seen the doors Closed. It seems to have been proved without controversy that the particular room from which the articles were taken was closed. ‘

An application for continuance was filed for two witnesses. One of these, Fincher, .would have testified he was familiar with the premises and had frequently passed there, and- that there was no one living in the house, and that he in the month of October prior to the burglary had seen the door open. The other witness would have- testified' there was do one living in the house, and that he on various occasions had passed the premises and seen the door open. The offense took place on the 10th of December. It was conceded that the door was open on various occasions; some parties having gone into it in pursuance of looking after the property. The diligence for one of these -witnesses was insufficient, and the court, in qualifying the bill, says that it was shown that neither of them would give the testimony alleged, and that, if given it would not have changed the,, result. In view of the evidence as disclosed by the statement of facts, it appears quite evident that the absent testimony would not, if present, have brought about a different result.

Exceptions to the charge based upon the submission of the want of consent of W. L. Hunt or C. A. Hunt are not tenable. It was affirmatively shown that the property was taken without the consent of either of these men.

The bill complaining of testimony describing a rope and other property that was left in the garage and smokehouse of W. L. Hunt is not accompanied with such explanatory facts as indicate that there was harm in admitting the testimony, even if it should have been rejected. The same may be said of the bill referring to the refusal of the court to instruct the jury that they should disregard the testimony to the effect that a. mattress was identified as having come from the burglarized premises. The bill gives no information touching the relation of this matter to the case. Examination of the statement of facts discloses that the witness W. L. Hunt testified that, with the other property taken from the premises, he found a mattress which he identified as his property, and as having been taken from the house. Nor was there error in permitting proof that appellant was in possession of a rope stolen from the burglarized premises at the same time the property described in the indictment was taken.

We find no error in the record, and refer for citation of authorities to the companion case of Davidson v. State. .

The judgment is affirmed. 
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