In his motion for rehearing appellant insists that we were mistaken in holding that the court properly refused his special requested instruction with reference to the value of the property taken as a result of the alleged burglary. Appellant proceeds upon the theory that because there is a law making it an offense to sell whisky that it follows there is no market value for the same and appellant can not be guilty of burglary if the burglary was perpetrated for the purpose of stealing whisky. We do not regard it as necessary to discuss the question at any length. The evidence in the instant case shows that before the present prohibition law went *Page 199 into effect that the owner of the whisky procured a considerable amount thereof and made a report to the United States Government with reference thereto and without any complaint from the Government continued to hold the same. It would appear he was in lawful possession of the whisky and the fact that he may have not been permitted to go into the open market and offer the same for sale would none the less render one guilty of burglary who broke into the house with the purpose of stealing the whisky kept therein.
Appellant also complains in his motion that the court did not discuss the question raised by him in his motion for new trial; viz: that the evidence did not support the allegation in the indictment that the house alleged to have been burglarized was occupied by Tom Primm. The proof shows that at the time of the burglary Mr. Primm was in a sanitarium and had been for some four or five weeks. His wife remained at home, visiting and staying with him at the sanitarium as much of the time as was practicable for her to do so. The rules as to alleging and proving ownership or possession in cases of burglary are the same as in cases of theft. (See Branch's Anno. Penal Code, Section 2325 and authorities collated thereunder.) It has been held by this court that although the proof might show that the owner was out of the State at the time of the theft, it will not change his possession of the property if he had not left the same in the actual care, control and management of another. Webb v. State, 44 S.W. Rep. 498; Parks v. State, 89 S.W. Rep. 1064; Cameron v. State,44 Tex. Crim. 652. The most recent case discussing in whose possession or control the burglarized house should be alleged where the evidence shows it was community property will be found in Peoples v. State, 90 Tex.Crim. Rep., 234 S.W. Rep. 394. The fact that Mr. Primm was temporarily in the sanitarium did not render it inappropriate for the State to allege that his residence was in his possession or custody, and the proof made was not inconsistent with the allegation.
The motion for rehearing is overruled.
Overruled.