
    ALINIS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 23, 1911.
    Rehearing Denied Oct. 11, 1911.)
    1. Burglary (§ 4) — Burglary of Private Residence.
    Pen. Code, 1895, art. 838, defines burglary as the entering of a house by force, etc., at night, or entering either in the day or night and remaining concealed therein with intent to commit a felony or a theft, and article 839a, as added by Acts 26th Leg. c. 178, provides that the offense of burglary in a private residence is committed by entering a private residence by force at night, or in any manner by entering a private residence either by day_ or night, and remaining concealed until night with intent to commit a felony or theft therein. Held, that the offenses described in the two articles were distinct offenses, and a conviction cannot be had under article 838, if the house burglarized was a private residence.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §■§ 14-18; Dec. Dig. § 4.]
    2. Burglary (§ 4) — “Burglary of Private Residence.”
    The house burglarized consisted of a storeroom, which was subdivided -by a partition, the front room being a restaurant, the middle room being used as a kitchen, and the rear room as a sleeping apartment for the tenant, his wife, and daughter, and the entry was made in the middle room and the articles stolen therefrom. Held, that the only part of the building used as a private residence was the sleeping apartment, so that the burglary was not a burglary of a private residence.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 14-18; Dec. Dig. § 4.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 908-911; vol. 8, p. 7598.]
    Appeal from District Court, Karnes County; John M. Green, Judge.
    Jose Alinis was convicted of burglary, and he appeals.
    Affirmed.
    M. B. Little, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPEIR, J.

Appellant was indicted, charged with the offense of burglary, that he entered the house by force with the intent to steal. He was convicted and sentenced to two years confinement in the penitentiary, from which judgment he has appealed to this court.

The appellant contends that the facts show that the house burglarized was a private residence, and, as the burglary was committed in the nighttime, he should have been prosecuted under article 839a, Pen. Code 1895, as added by Acts 26th Leg. e. 178, instead of article 838. It has been held by this court that the offense denounced in article 839a is a separate and distinct offense, and, if the facts show a violation of this article of the statute, a conviction under article 838 would not be jusitfied (Martinus v. State, 47 Tex. Cr. R. 528, 84 S. W. 831, 122 Am. St. Rep. 709; Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703), and, if the room burglarized in this ease is to be construed to be a private residence, then, of course, this conviction cannot stand. In Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763, a room occupied as a sleeping apartment in a school dormitory or hotel is held to be the private residence of the occupant, but we do not think the authorities justify or authorize a holding that the office, dining room, or kitchen of a hotel is a private residence, or part of a private residence, even though the proprietor with his family should occupy certain rooms of the hotel as sleeping apartments. In fact, each room of a hotel has been held to be the private residence of the occupant of the room, and not the private residence of the proprietor who occupied other rooms.

In this case the facts show that Ben Silva rented a storehouse in Karnes City, close to the post office; that the storeroom was subdivided, having two partitions. The front room was a restaurant, the middle room was used as a kitchen, and the rear room as a sleeping apartment of himself, wife, and daughter. The entry was made into the middle room, or kitchen, and the articles taken from this room. When we take the use of the entire building, we are constrained to believe, under the former decisions of this court, that no part of the building was a private residence other than the rear room occupied by Silva and family as a sleeping apartment, and, taking this view, there was no error in refusing to give charge No. 2 requested. The court’s charge presents fully the law as applicable to a ease depending on circumstantial evidence, and there was no error in refusing to give special charge No. 2. Defendant did not before, at the time of his arrest, nor at any other time give any explanation of his possession of the stolen property, and under the evidence it was not incumbent nor proper for the court to charge on defendant’s possession of the property. The state relied on the testimony of the witness Remedes to show that defendant had possession shortly after the burning of Tob-in’s store; Silva having testified that the house was burglarized and watch stolen the night of the fire. This witness says it was after the fire that defendant pawned her the watch, and, if defendant ever had the watch, the possession after the burglary was recent and unexplained.

Neither did the court err in permitting the state to prove that a clock and watch were stolen out of the room after entry had been made by force. The evidence supports the verdict.

The judgment is affirmed.  