
    (86 Tex. Cr. R. 352)
    HORNBUCKLE v. STATE.
    (No. 5463.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1919.)
    1. Burglary <§=>4 — Kitchen connected by A PLANK PABT OF “PRIVATE RESIDENCE.”
    Under Pen. Code 1911, art. 1314, defining private residence as any building or room occupied and actually used by any person or persons as a place of residence, a kitchen about 16 feet from bedrooms which were used by the family and connected therewith by plank walk, used both as a kitchen and dining room, must be deemed a part of a private residence.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Private Residence.]
    2. Criminal law <§=>507(2), 780(2) — Denial OF CHARGE ON ACCOMPLICE TESTIMONY ERRONEOUS.
    In a prosecution for nighttime burglary of a. private residence, where it was contended that defendant stole therefrom a can of lard, a witness whose testimony showed that on the night of the burglary he learned of defendant’s possession of the lard, and after hearing of the burglary he received and bid it, is an accomplice witness, and defendant’s request for charge on accomplice testimony was improperly denied.
    Appeal from Criminal District Court, Bowie County; P. A. .Turner, Judge.
    Jim I-Iornbuckle was convicted of nighttime burglary of a private residence, and he appeals.
    Reversed and remanded.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    C. M. Cureton, Atty. Gen., and E. A. Berry and W. J. Townsend, Asst. Atty. Gen., for the State.
   ■MORROW, J.

The conviction is for nighttime burglary of a private residence. The evidence establishes the breaking of the house and the theft therefrom of a can of lard. It was the state’s theory that while Forsythe and his wife, the owners of the property, were attending church in the neighborhood, which church the appellant was also attending, he left the church during the services, opened the house, and got the can of lard, bringing it to a point near the arbor of the church, and subsequently the same night took it to his home, which was in the neighborhood. This theory was supported by the testimony' of two witnesses, who gave testimony in the nature of a confession. They were attacked ;upon the ground that they were animated by a' desire to injure the appellant, because he had caused them to be charged by indictment with burning his barn.

There was proof that a five-gallon can, together with a cloth, was taken out of the dam on appellant’s premises; and.1 these the testimony of Forsythe and wife tended to identify as the can which contained the lard stolen and the cloth which covered it.

Cooper, a witness for the state, testified that at the time the burglary took place he was living at ¿ppellant’s house and working for him, that on the night the burglary took place he went with the appellant to church, remained with him throughout, and that together they went to appellant’s house and spent the night. The witness said that he was engaged in constructing a dam for the appellant, and that after the burglary — he having no knowledge of appellant’s connection with it — appellant brought to him a five-gallon lard can, which the witness, at appellant’s request, put into the dam ahd cover-1 ed' with dirt. It was shown that prior to giving his testimony this witness had denied any knowledge or connection with hiding the can.

Appellant testified, denying the theft, the confessions, and any connection with hiding the property or delivering it to Cooper.

The term “private residence” is declared by the statute to mean “any building or room occupied and actually used * * * by any person or persons as a place of residence.” Penal Code, art. 1314. The dwelling of Forsythe consisted of two sleeping rooms with a hall between and a room used as a kitchen and dining room to which was attached a shedroom used as a pantry. The kitchen was about 16 .feet distant from the bedrooms, and the two were joined by a plank walji. Forsythe and his family lived in this abode. They did not sleep in the kitchen, from which the lard was taken, but kept their supplies in that and the adjoining shedroom, and used the kitchen for cooking the meals and for dining purposes. In our opinion, the whole constituted the private residence within the meaning of the statute, and was used by the owner named in the indictment as a place of residence. W-ith the contrary view urged by appellant we are unable to agree. See Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Johnson v. State, 52 Tex. Cr. R. 201, 107 S. W. 52; Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703; Cyc. Daw & Procedure, vol. 34, p. 1647.

The appellant sought to have the question as to whether Cooper was an accomplice witness requiring corroboration submitted to the jury, and complains of the refusal ot the court to do so. Under the evidence, Cooper’s connection with, the crime was such as to make it incumbent upon the court to Instruct the jury on the law of accomplice testimony. If the appellant, as the state contends, carried the lard can home from the church on the occasion mentioned, and Cooper was with him on that particular occasion, as he testified, the conclusion that he knew of the possession of the ean of lard by the appellant cannot be escaped. Cooper admits he knew of the burglary before he received and hid the can. It has often been held that one receiving or concealing stolen property with knowledge of its theft is classified as an accomplice witness. Johnson v. State, 58 Tex. Cr. R. 245, 125 S. W. 16; Branch’s Annotated Penal Code, p. 367. See, also, Simmons v. State, 50 Tex. Cr. R. 528, 97 S. W. 1052; Wyatt v. State, 55 Tex. Cr. R. 74, 114 S. W. 812; Kelley v. State, 34 Tex. Cr. R. 414, 31 S. W. 174.

The testimony of Cooper, if believed by the jury, was hurtful to the appellant, and he was entitled to have the jury instructed in appropriate terms that, if they believed Cooper was an accomplice, his testimony uncorroborated could not form the basis of conviction.

> The judgment is reversed, and the cause remanded. 
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