Appellant was indicted, tried and convicted of the offense of burglary, the allegation being that he burglariously entered a house occupied by A.J. Cariker, without his consent, and with the intent to steal certain property belonging to A.J. Cariker.
Appellant filed a plea of former acquittal. The plea on its face shows that appellant had been indicted for entering the same house, the allegation in that indictment being that it was occupied by Tom Cariker, and appellant had entered it with the intent to take property belonging to Tom Cariker, tried and acquitted. The court did not err in sustaining a demurrer to the plea and refusing to submit the plea to the jury. Appellant, under the former indictment, could not have been convicted for breaking a house in the control of A.J. Cariker with the intent to steal property belonging to him, as the allegation was in the former indictment that the house was occupied by Tom Cariker, they being separate and distinct individuals. This question is fully discussed in Simco v. State, 9 Texas Crim. App., 348; Wright v. State, 17 Texas Crim. App., 152; Alexander v. State, 21 Texas Crim. App., 409. The rule announced in these cases has always been followed in this court, as well as in other jurisdictions. For a collation of authorities see Cyc. vol. 12, p. 289; Branch's Crim. Law, sec. 398.
In his next bill of exceptions appellant complains of the action of the court in overruling his application for a continuance. Without discussing the diligence, the State's testimony would show that appellant and another, with a battering ram, opened a door, entered a room of a store house, and took out some beer, the State's witnesses positively identifying appellant as one of the men seen coming out of the room, and he was arrested shortly thereafter with bottles of beer in his possession, which possession is unexplained in the record. In his application for a continuance he states he expects to prove by the absent witness that on the night of the alleged burglary, a negro came to him and asked him if he wanted some beer, and upon giving an affirmative reply, the negro sold him a half dozen bottles of beer; that the negro claimed to belong to the section crew on the T. N.O. road across the river. It is stated that the witness would swear he did not know where the negro got the beer. From this record we do not know whether appellant is a negro or a white man, and the allegations in the motion do not state that the witness would swear that appellant was not the man who sold him the beer; the application does not negative the fact that defendant may himself have been a member of the section crew of the T. N.O. road across the river, and the identical man who sold the absent witness beer. Consequently it does not present such matter in a way that would authorize a reversal of the case. Even if the person who sold the absent witness beer had been alleged to be a different person from defendant, there is no fact or circumstance alleged that would indicate that the negro got the beer out of the *Page 178 Cariker house, except perhaps the circumstance that it is shown there was more beer stolen than is accounted for by the record, but there is no allegation that this negro was ever seen in or near the Cariker house, nor that the beer sold by the negro to the absent witness was beer of the same brand. The materiality of the testimony is not made apparent by the application for a continuance.
The house alleged to have been burglarized was a store house, with two wings. In one of the rooms of the house, hay had been stacked as high as the joists, making a partition of the room. A.J. Cariker had the key to the door leading to the room, or part of room, in which the beer was stored. Tom Cariker had the key to the room or part of room north of the hay partition. To get from one room to the other, a person could climb over the hay, piled to the joists, as there was space between the joists and the roof of the building. The court charged the jury:
"If such room has a door at each end of it by which it may be entered but there is an obstruction across the room such as hay or other substance of such height and reaching so near the roof as to make it necessary to climb or crawl over it in order to pass from one of the rooms to the other, then each end of such rooms is in law a separate `house' within the meaning of the law and the entry into such room by breaking or prizing open the door which gave immediate entrance thereto would, without the consent of the person having the occupancy of same, and with intent to commit theft of property therein, be burglary." Which paragraph of the charge was excepted to on the ground that it was an erroneous definition of a house, and was upon the weight of the testimony. It is proper for the court to define what constitutes a house as applicable to the evidence, and in so doing, such charge would not be upon the weight of the testimony. As to whether a room thus cut off in a building would constitute a house, within the meaning of our statute is so fully discussed by Judge Willson in the case of Anderson v. The State, 17 Texas Crim. App., 309, we merely refer to that case and reaffirm the rule there announced. In that case the place entered was an office in a warehouse. The office is thus described: "It is about eight or ten feet in size. It is in one corner of the hardware room, is made of pickets; the pickets are four feet high and one inch square, and about three inches apart. The gate was made of the same material and had a latch. There was an open space of about six feet between the top of the pickets and the ceiling of the house, and a person could get into this office by climbing over the pickets, without going in at the door or gate." The court held:
"We are of the opinion that the place, office, apartment or room in question in this case comes within the meaning of a `building,' `structure,' `house,' as used in our statute relating to burglary. We think the evidence sufficiently proves that the office was entered by defendant by breaking. The slightest force constitutes a breaking, such as the lifting the latch of a door that is shut, the raising of a window, the *Page 179 entry at a chimney, or other unusual place. (Penal Code, article 708.) In this case the evidence satisfactorily shows that the defendant entered the office where he committed the theft either by lifting the latch of the door thereto, or by climbing over the picket inclosure, and if he entered by the latter mode, it would be entering at an unusual place and would be a breaking, under our statute." For other authorities see James v. The State,63 Tex. Crim. 75, 140 S.W. Rep., 1086 and cases there cited; and Branch's Crim. Law, sections 156 and 158. The charge is not subject to the criticism that it charged the jury that A.J. Cariker was the occupant of the room burglarized. It instructed the jury if he had the key and exclusive right and means of entry, then he would in law be the occupant. This is a correct proposition as applicable to the evidence. There was no error in refusing the special charges requested as they were fully covered by the main charge, except the one in regard to the remarks of the district attorney. However, if the district attorney used such language there is no bill of exceptions verifying that fact, nor, if used, that any exception thereto was reserved. The only way it is called to our attention is that a special charge was requested, and defendant excepted to the refusal of the court to give this charge. This in no way verifies the fact that the language was used; it may be that the court refused the charge because no such language was used, or not excepted to if used.
The only other question raised by the motion for a new trial is the alleged misconduct of the jury. In bill of exceptions No. 9 it is shown that defendant excepted to the action of the court in overruling the motion for a new trial on this ground, but the bill does not contain the evidence, merely referring to the statement of facts, which is asked to be taken as a part of the bill. The statement of facts was not filed until May 21, while court adjourned on March 22. This court in an unbroken line of decisions since the opinion in the case of Black v. State,41 Tex. Crim. 185, has held that evidence heard on a ground set up in motion for new trial, can not be preserved, by a mere statement of facts filed after term time. The authorities are collated in Probest v. The State, 60 Tex.Crim. Rep.. But if we should consider the statement of facts and consider the testimony offered on behalf of defendant, all that was shown was that the sheriff carried the jury to a restaurant for dinner. That the jury was seated at tables Nos. 3 and 4 in the restaurant; that other people were in the restaurant eating at the counter and other tables. No one but the jury was permitted to eat at the tables at which the jury was seated. As the jurymen finished their dinner, they would get up from the table and stand about in the room, the sheriff being there in the room. It is not shown that any person spoke to any member of the jury, while they were thus waiting for the others to finish their dinner. It is true that one or two persons are shown to have passed along by where the jurymen were standing in going through the room, but such persons *Page 180 did not speak to the jurymen, nor the jurymen to them. The jurymen who testified say the case was not discussed, even among themselves while in the restaurant. These facts would present no ground for reversal of the case. Barnes v. The State,61 Tex. Crim. 37, 133 S.W. Rep., 891; Robinson v. The State,58 Tex. Crim. 550, 126 S.W. Rep., 278, and cases therein cited.
The judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, not sitting.
ON REHEARING. June 28, 1912.