Appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary.
Appellant resided in a livery stable. Adjoining his room, and within the same building, was an oat bin, the entrance to which was a small door, which was raised by any person getting oats. It was unlocked. The bin contained oats belonging to other parties, who rented other portions of the livery stable. At midnight appellant raised the door and took out some oats, of the value of forty cents, and fed to his horses. Was it burglary? Under our code there is quite a difference *Page 172 between an unlawful entry into a house made by a domestic servant or inhabitant thereof, and that made by a stranger. To constitute burglary on the part of a domestic servant or inhabitant of the house, there must be an actual and not a constructive breaking (Penal Code, art. 714), while on the part of a stranger a constructive breaking is sufficient, as by lifting a latch, or raising a window, or opening a door. Id., art. 708. The law applies as well to the inner as the outer door. Anderson v. The State, 17 Texas Crim. App., 311. The evidence clearly shows that the appellant was an inhabitant of the livery stable. Wakefield's case, 41 Tex. 558. Therefore his lifting the door of the bin would not constitute the actual breaking required by the law to constitute burglary under the code.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.