The offense is attempted arson; the punishment, confinement in the penitentiary for two years.
The State’s testimony was, in substance, as follows: Officers observed appellant place a paper sack behind the billboard in the lobby of the Liberty Theater in Gladewater, Texas. Approaching appellant, they asked him what he threw behind the billboard, and appellant replied: “Oh, nothing.” Securing the sack, the officers found that it had in it some dynamite caps and a lighted fuse connected with four sticks of dynamite. The sack was full of smoke. Appellant said the sack contained a “stink bomb.” While the officers were arguing with him about the matter, the smoke began to come out of the sack. Appellant then said: “Mister, throw that away. It is going to blow us all to hell in just a minute.” One of the officers threw the dynamite into the street. Sometime prior to appellant’s apprehension, he had asked the properitor of the theater for work and had not been given a job.
Appellant did not testify.
The proof showed that there was a partition between the lobby and that part of the theater where pictures were shown. There were walls on each side of the lobby up to the sidewalk. The operating room was immediately over the lobby. A roof covered the entire building, including the lobby. The lobby opened on the sidewalk. It is appellant’s contention that the proof fails to show that he placed the dynamite in a house. He calls attention to art. 1316 of the 1933 Cumulative Annual Part of Vernon’s Annotated Penal Code of the State of Texas, which reads as follows: “Any person who wilfully attempts to set fire to or attempts to burn, or who shall aid or counsel in such attempt, or who shall attempt to procure the burning of buildings or property, such as are mentioned elsewhere in Chapter 1, Title 17 of the Penal Code of 1925, or any person *187who shall place or distribute any inflammable, or explosive, or combustible material, or any substance of whatsoever kind or character, or any article or device in any building or property mentioned in said chapter 1, title 17 of the Penal Code of 1925, in an arrangement or in preparation with wilful intent to eventually set fire to or burn said building or property, or to cause said property or building to be burned, shall be guilty of an attempt to commit the offense of arson, and shall upon conviction be sentenced and confined in the penitentiary for not less than one year or more than seven years.”
It is insisted that the placing of the dynamite in the lobby was not placing it in a house, as averred in the indictment under that part of the above statute relating to an attempt to burn by placing the material in the house. We are unable to agree with this contention. Under the circumstances reflected by the record, we think it is clear that the lobby was a part of the house within the contemplation of the statute defining attempted arson. Caddell v. State, 50 Texas Crim. Rep., 380.
Appellant further contends that the prosecution should fail because of the fact that there was no proof that dynamite will set fire to and burn a house. This contention is made in view of the fact that it is alleged in the indictment that it was appellant’s intent to eventually set fire to and burn the house in which the dynamite was placed. We do not believe this contention can be sustained. In Nelson v. State, 66 S. W. (2d) 312, the appellant was charged with arson by burning. The offense was committed by exploding some gasoline in the house. It was sought to have the jury charged to acquit the appellant of arson in the event that they found the house had been destroyed by an explosion. In holding that the charge was properly refused, this court said: “We do not believe that the court committed any error in refusing to submit said charge, inasmuch as article 1309 of the Penal Code of Texas 1925, reads as follows: ‘* * * The explosion of a house by means of gunpowder or other explosive matter comes.within the meaning of arson.’ ”
As shown in several bills of exception, appellant objected to testimony showing the location of the Liberty Theater. For example, there was proof, over his objection, that said theater was situated in the business district of Gladewater, and that it was near a flowing oil well. If this testimony was inadmissible, —and this is not conceded, — it is observed that the evidence of guilt is plain and that appellant received the minimum penalty.
*188A careful examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
The foregoing opinion of the Commision of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.