
    ALINIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1911.)
    1. Burglary (§ 38)—Evidence—Possession oe Goods.
    Under an indictment charging burglary with intent to commit theft, without specifically alleging_ that the property found in defendant’s possession was stolen from the burglarized house, evidence that a portion of the stolen property was found in defendant’s possession was admissible, not only to show intent, but also to connect accused with the offense charged.
    [Ed. Note.—For other cases, see Burglary, Cent. Dig. § 91; Dec. Dig. § 38.}
    2. Burglary (§ 4)—Nature oe Building— “Private Residence.”
    A building burglarized consisted of a storehouse in which a restaurant was conducted. The storehouse was divided into three rooms. The first was used as a dining room, the middle room for cooking, and the rear room was occupied by prosecutor and his wife as a bedroom. The room entered, and from which the property was stolen, was the cookroom. Helé, that the premises did not constitute a “private residence,” and that accused was properly prosecuted under Pen. Code 1895, art. 839, declaring that he who enters a house in the daytime with intent to commit a theft by breaking is guilty of burglary, and not under article 839a, as added by Acts 29th Leg. c. 178, providing that the entry of a private residence, either in the day or night, shall constitute burglary.
    [Ed. Note. — For other cases, see Burglary, Oent. Dig. §§ 14-18; Dec. Dig. § 4.
    
    For other definitions, see Words and Phrases, vol. 6, p. 5578.]
    Appeal from District Court, Karnes County ; John M. Green, Judge.
    Enemencio Alinis was convicted of burglary, and he appeals.
    Affirmed.
    M. B, Bittle, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and. section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

In this case appellant was indicted by the grand jury, charged with burglary. Upon a trial he was convicted, and his punishment assessed at two years’ confinement in the penitentiary.

1. It was a ease of circumstantial evidence, and the state relied on the fact that appellant was found in possession of a portion of the property stolen from the house as a circumstance to connect him with the offense. Appellant objected to the state proving that property was stolen from the house, and that defendant was found in possession of it, as the indictment only alleged burglary with the intent to commit theft, and did not specifically allege that the property found in defendant’s possession was stolen from the alleged burglarized house. This identical question was passed on by this court in the case of Lynne v. State, 53 Tex. Cr. R. 387, 111 S. W. 151, and the testimony held admissible, as having a bearing tending to connect a person on trial with the commission of the offense. See, also, Moseley v. State 43 Tex. Cr. R. 560, 67 S. W. 414. It follows that the court did not err in admitting the testimony, nor in refusing the special charge, requested by appellant, limiting this testimony as only admissible to show intent. It was admissible for that purpose, and also as a circumstance tending to connect the appellant with the offense committed.

2. The only other ground in the motion raises the question that the house in question was a private residence, and, if the offense of burglary was committed, he could not be convicted under article 839 of the Penal Code of 1895; but he should be prosecuted under article 839a, as added by Acts 29th Leg. c. 178. This question was discussed in the case of Jose Alinis v. State, 139 S. W. 980, decided at the last term of court and not yet officially reported. The evidence shows that the house burglarized was a storehouse in which a restaurant was conducted. The storehouse, by partitions, was divided into three rooms. The first room was where the public were given their meals; the middle room where the cooking was done, while the rear room was used as a place to sleep by the prosecuting witness and his wife. ' The room entered, and from which the property was stolen, was the cookroom. Under the decisions of this court, we do not think this would make the room in question a part of a private residence. See Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Jose Alinis v. State, 139 S. W. 980, not yet officially reported.

The judgment is affirmed.

DAVIDSON, P. J., absent.  