
    P. C. Peters v. The State.
    
      No. 402.
    
    
      Decided April 14.
    
    Burglary — Domestic Servant or Inhabitant — “Breaking.”—The difference between an unlawful entry into a house, to constitute burglary, when made by a domestic servant or inhabitant of the house, and that made by a stranger, is, that in the latter ease a constructive breaking is sufficient, while as to the former our statute requires that the breaking be an actual breaking. Penal Code, art. 714.
    Appeal from the District Court of Hunt. Tried below before Hon. E. W. TerhuNE.
    The indictment charged that defendant Peters did by force, threats, and fraud, at night, break and enter a house occupied by R. D. Campbell and N. B. Eiland, with intent to commit the crime of theft. At his trial he was convicted of burglary, and his punishment assessed at two years’ imprisonment in the penitentiary.
    The evidence is that defendant, about 12 or 1 o’clock at night, opened an oat bin in a livery stable which belonged to Campbell and Eiland, and took a bushel of oats, the property of said parties, from said bin, without their knowledge or consent. It appears that there was an east and west side to tbe livery stable. Campbell and Eiland bad rented tbe east half of tbe stable, and one John Goode tbe west balf. Defendant was a “horse doctor,” and be rented three stalls from Goode in wbicb be kept borses, and also rented a sleeping room inside tbe stable and in rear of tbe stable office, in wbicb be and another party slept. Tbe oat bin was in rear of this room. These rooms were between tbe east and west side of tbe stable, and inside tbe stable. Tbe other part of tbe stable was open vacant' space between tbe stalls, wbicb were arranged on tbe east and west sides respectively. This open space in tbe stable was used in common by all parties occupying any part of tbe stable. For three months defendant bad occupied tbe stalls and slept in tbe room be rented from Goode. Tbe bin was entered by raising a shutter and placing a stick under tbe shutter to bold it up. Tbe shutter could be easily raised.
    
      M. M. Broolcs, for appellant.
    The evidence in this case shows that tbe appellant was an inhabitant of tbe stable; that be slept there, kept bis borses there, and bad bis office there. He was a veterinary surgeon, and kept bis instruments in tbe livery stable for tbe purpose of doctoring borses. There was no partition between tbe east and west sides of tbe stable. That tbe oat bin was attached to tbe room in wbicb appellant slept, but bad no cover or top save tbe roof of tbe stable. That the bin was entered by lifting a.small door. No “actual force” was necessary to enter tbe bin.
    Article 714, Penal Code, provides: “An entry into a bouse for tbe purpose of committing theft, unless tbe same is effected by actual breaking, is not burglary when tbe same is done by a domestic servant or other inhabitant of such house; but a theft committed by such person after entering a bouse is punishable as in other cases.” Miller v. Tbe State, 23 Texas Crina. App., 38; Melton v. Tbe State, 24 Texas Crim. App., 288; Wakefield v. Tbe State, 41 Texas, 556.
    Appellant was neither a lodger nor a visitor, but bad bis permanent residence in tbe livery stable.
    
      It. L. Henry, Assistant Atorney-General, for the State.
   SIMKINS, Judge.

Appellant was convicted of burglary, and bis punishment assessed at two years in tbe penitentiary.

Appellant resided in a livery stable. Adjoining bis room, and within tbe same building, was an oat bin, tbe entrance to wbicb was a small door, wbicb was raised by any person getting oats. It was unlocked. The bin contained oats belonging to other parties, who rented other portions of tbe livery stable. At midnight appellant raised tbe door and took out some oats, of tbe value of forty cents, and fed to bis borses. Was it burglary? Under our code there is quite a difference between an unlawful entry into a bonse made by a domestic servant or inhabitant thereof, and that made by a stranger. To constitute burglary on the part of a domestic servant or inhabitant of the house, there must be an actual and not a constructive breaking. (Penal Code, art. 714), while on the part óf a stranger a constructive breaking is sufficient, as by lifting a latch, or raising a window, or opening a door. Id., art. 708. The law applies as well to the inner as the outer door. Anderson v. The State, 17 Texas Crim. App., 311. The evidence clearly shows that the appellant was an inhabitant of the livery stable. Wakefield’s case, 41 Texas, 558. Therefore his lifting the door of the bin would not constitute the actual breaking required by the law to constitute burglary under the code.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.  