Appellant presents for rehearing some of the same questions discussed and decided against him in the original opinion. Nothing new is presented thereby; it is unnecessary to again discuss them.
However, he contends that the court misunderstood his contention about the insufficiency of the indictment. He states that he did not contend that more than one count should not be contained in the indictment. It was not intended in the original opinion to so state his *Page 578 contention. In the original opinion the grounds on which he claimed the indictment was bad were accurately stated. What he contends now is that the count under which he was convicted of the burglary of a private residence at night contained all the ingredients to constitute ordinary burglary, that is, burglary not of a private residence. His contention may be further stated from his motion as follows: "That if a private residence is a house within the meaning of the statute, then if under the evidence this house should not have been Will Holston's private residence but had been shown to be Will Holston's other kind of a house, and defendant convicted therefor, then this one count would have contained two indictments in one count. . . . The court only instructed as to burglarizing a private residence at night, but the question is, suppose the evidence had shown that it was not a private residence, could a conviction have still been had for burglary at night, or for burglarizing a house by breaking in the daytime? Appellant contends that such conviction could have been had if the evidence had been such as to sustain it."
The count under which appellant was convicted, which was quoted in the original opinion, avers the burglary of a private residence at night solely. It does not charge the burglary of any other house other than a private residence at night. Under it he could not have been convicted for any other burglary whatever.
In Curtis v. State, 76 Tex.Crim. Rep., it was shown that appellant therein had been previously indicted and placed on trial under an indictment charging him with an ordinary burglary by force, etc., without alleging it was burglary of a private residence in the night-time, whereas the one under which the conviction therein against him was obtained charged him with the burglary of a private residence at night. This court, through Judge Davidson, in that case held: "Upon the first trial, after proceeding with the trial before the jury, in the introduction of evidence, it is to be supposed from the pleadings it was discovered that the house was a private residence, the burglary being committed at night. Appellant could not, therefore, be convicted under a charge of ordinary burglary. Burglary of a private residence at night is a distinct and different offense, made so by the statute expressly. In other words, under an indictment charging ordinary burglary a party can not be convicted for the burglary of a private residence at night; nor can he be convicted, if the charge is for burglarizing a private residence, for the ordinary burglary." This has been the holding of this court uniformly, and in many cases.
In 2 Branch's Ann. P.C., p. 1290, he lays down these correct propositions of law applicable herein: (1) If the count on which defendant was convicted is for ordinary burglary, and the proof shows a burglary of a private residence at night, the variance is fatal, the two offenses being separate and distinct, citing Fonville v. State, 62 S.W. *Page 579 Rep., 573; Martinus v. State, 47 Tex.Crim. Rep.; Mays v. State, 50 Tex.Crim. Rep.; Rodgers v. State, 59 Tex. Crim. 146. (2) Where the proof shows a burglary of a private residence at night, a conviction for ordinary burglary will be set aside, the two offenses being separate and distinct, citing Jones v. State, 47 Tex.Crim. Rep., and Martinus v. State, 47 Tex.Crim. Rep..
The uncontradicted evidence herein shows that the house burglarized was the private residence of Holston, and that the burglary was committed in the night-time. So that there is no merit at all in appellant's contention.
Our statute prescribing the offense of burglary of a private residence at night does not use the word "house" in designating the private residence, but uses alone "private residence." The indictment in this instance followed the statute in averring the burglary of a private residence. However, article 1309, Penal Code, defines what is meant by a house as "any building or structure for public or private use, . . . and of whatever material it may be constructed." In Favro v. State,39 Tex. Crim. 453, this court, in another opinion by Judge Davidson, held that an humble structure built of odd planks and boxes and covered with a wagon sheet, and used by the occupant as his residence, was a house within the meaning of the burglary statute, among other things holding therein: "Such a structure is as much under the protection of the burglary statute as would be a structure entirely made of wood or stone, brick or granite. The law does not mention the character of structure or the material of which it shall be made. It protects the humble tenant in his tent as well as his more fortunate neighbor in his palace." There is, therefore, no merit in appellant's further contention, in substance, that because the indictment alleged that appellant burglarized the private residence of Holston at night, proof was not admissible that such private residence was a building or a room. The uncontradicted evidence showed that the private residence of Holston, which appellant burglarized at night, was an ordinary house in which there was a room or more than one room.
For the first time in this court, after even the cause had been submitted on appellant's motion for rehearing, he contends that the agreed evidence of the two State's witnesses, who were absent, was inadmissible on the ground that he was deprived of being confronted by the witnesses by the agreement made between his and the State's attorney as to what their testimony would be, and contends that the attorneys could not waive the sanctity of their testimony under oath. The record shows that the testimony of these two witnesses was agreed to by the attorneys in open court when appellant was present and heard it, and that it was stated to the jury as the testimony of these two witnesses. Appellant did not then or at any other time during the trial make any objection whatever to the admission of this agreed testimony of these witnesses. He took no bill thereto; he did not make it a ground of the *Page 580 motion for a new trial, and, as stated, for the first time at this late date makes said objection. This presents no ground for a rehearing or a reversal. Eoff v. State, 75 Tex. Crim. 245; State v. Levy, 170 S.W. Rep., 1114. This court has also so held in other cases.
The motion is overruled.
Overruled.