Alinis v. State

• Decision Date: 23 June 1911
• Citation: 139 S.W. 980
• Parties: ALINIS v. STATE.
• Court: Texas Court of Criminal Appeals

139 S.W. 980

ALINIS v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1911.

Rehearing Denied October 11, 1911.

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.

HARPER, 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. c. 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 justified (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 case 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 ...