Holland v. State

• Decision Date: 20 May 1903
• Citation: 74 S.W. 763
• Parties: HOLLAND v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W. 763

HOLLAND v. STATE.

Court of Criminal Appeals of Texas.

May 20, 1903.

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

Charles Holland was convicted of burglary, and he appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of three years.

Bill No. 1 complains that the court erred in permitting the state to prove by prosecutor that the room burglarized was in a hotel; appellant's contention being that inasmuch as the indictment alleged the house to be a private residence, and the proof shows that it was a room in a hotel, there is a fatal variance between the allegation and the proof in this respect. The bill of exceptions and the evidence show that prosecutor was renting the room, and was residing in the same as a private residence, at the time it was burglarized. Under the circumstances, the room was a private residence, within contemplation of the law. Ullman v. State, 1 Tex. App. 220, 28 Am. Rep. 405. See, also, article 845c, Pen. Code 1895 (Acts 26th Leg. p. 319).

Appellant complains of the court's charge because it authorized the jury to assess his punishment on conviction by confinement in the state penitentiary for not less than 2 nor more than 12 years, when the statute provides the punishment for burglary of a private residence is not less than 5 years. As stated, if a burglary is committed in a private residence in the daytime, the fact of its being a private residence does not change the punishment, but is as stated by the court. If the burglary is committed in a private residence at night, or if this burglary had been committed at night, though the evidence shows the contrary, then the court would have been in error in stating the punishment as he did. See Williams v. State, 62 S. W. 1057, 2 Tex. Ct. Rep. 359.

Appellant also insists that the court erred in failing to charge the jury the law of circumstantial evidence. The evidence establishing the burglary is not circumstantial. Schroeder testified that when he left the room he closed the door, but did not lock it—only pulled it shut, so as to latch it. On cross-examination he testified: "I did not lock the door as I went out of the room—only pulled it shut. I cannot say whether it was opened by some one other than defendant before defendant went into the room. I would not say that the door could not have been opened...