The indictment charged that appellant burglarized a house occupied and controlled by Mrs. M. A. Smith (not related to appellant.) It is appellant's contention that the evidence shows that the offense committed was the burglary of a private residence at night, whereas the offense charged was only ordinary burglary. The statement of facts reveals that the house in question was a residence which belonged to Mrs. M. A. Smith, but not occupied by her or anyone else at the time of the burglary. She lived in Breckenridge, while the burglarized house was twelve or fourteen miles west of that city. She testified that the burglarized house was a residence, but was temporarily vacant; that she had seen the house and been to it about three or four days before it was entered. Appellant seems to draw the conclusion that Mrs. Smith actually occupied the house as a residence at the time of the burglary, and had only been temporarily away from it three or four days. We do not so understand the evidence. A son of Mrs. Smith testified that his mother "had not been there for several years." The record does not reveal who had been occupying the house since Mrs. Smith had left it, but it seems to have been actually occupied as a residence by no one when the burglary occurred. Under the evidence we think a conviction could not have been sustained for the offense denounced in article 1391, P. C., as burglary of a private residence, such being one "actually used at the time of the offense by any person as a place of residence." We believe under the facts those cases such as Handy v. State,46 Tex. Crim. 406, 80 S.W. 526, which hold that a temporary vacancy would not render the statute inoperative, have no application.
Appellant's motion for rehearing is overruled. *Page 229