
    MARTIN v. STATE.
    No. 15676.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Thos. C. Perguson, of Burnet, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Burglary is the offense; penalty assessed at confinement in the penitentiary for two years.

Ployd Vaughn, his wife’and child resided at a place near Marble Palls. They lived in a tent with a top and four walls, with a door for the purpose of going in and out. The door was fastened with a nail on the inside and a big wire hook. On the night of April 27, 1932, after retiring, the witness heard the voices of persons around the tent and recognized those of Leslie Terry and Bill Martin. The Vaughn family left the tent, and upon their return the same night, found the tent torn down. The appellant was recognized as one of the offenders.

That a tent may be a house within the meaning of the law is not open to serious question. See Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, 1096, and authorities cited.

It was after dark when Vaughn and his family left their premises, and it was during the night that they returned thereto.

Appellant claims that the offense was not simply burglary, but burglary of a private residence at nighttime.

In Tex. Jur. vol. 7, p. 802, it is said:

“If the evidence shows an entry of a private residence during the nighttime, a conviction is not sustainable unless the indictment charges the offense of burglary of a private residence at night. The accused may not be convicted of ordinary burglary; nor, under an indictment charging ordinary burglary may he be convicted for the burglary of a private residence at night. Furthermore, a conviction for ordinary burglary may not be had under an indictment charging a nighttime burglary of a private residence.”

“ ‘The ordinary burgary indictment will not support a conviction for breaking a private residence, nor will an indictment for breaking a private residence sustain a conviction for any other burglary, either day or night.’ ”

In support of the appellant’s position, the case of Foster v. State, 110 Tex. Cr. R. 594, 9 S.W.(2d) 1037, is cited by him and is regarded as supporting his contention. Under the circumstances, the conviction for burglary in the ordinary form cannot be sustained.

The judgment is reversed, and the cause remanded.  