[Harrison was indicted for the burglary of the dwelling-house of B. J3. Holcombe. The evidence showed, in brief, as follows : Holcombe and his family lived in the house. In September, 1883, they went to Florida, but intended to return. They packed their goods in two rooms, which they locked, and left the balance of the bouse in the hands of a real estate agent to rent. • A tenant took the house for a year, but subsequently moved out, leaving it vacant for a time. It was broken open, and certain property taken from it at some time near June 1,1884, and when Holcombe’s wife returned, she found a number of things gone. The defendant was arrested on June 2, and the stolen property was found in his possession, about which he made improbable statements.
The j ury found the defendant guilty. He moved for a new trial, on the following among other grounds:
(1.) Because the verdict was contrary to law and evidence.
(2.) Because the court charged as follows: “ If you find from the evidence that it was the dwelling-house of B. D. *803Holcombe, but that he was temporarily absent from it, and that no one was occupying it at the time, but that he was gone with the intention of returning to it as his dwelling-house, then that would be sufficient to show that it wns the dwelling-house of B. D. Holcombe, even though you should find it was not occupied at the time; yet if you find that he was temporarily absent, with the intention of returning to it as his dwelling house, and that it had been occupied by him as his dwelling-house previous to that lime, you would be authorized to conclude that it was at the time the dwelling-house of B. D. Holcombe.”
(3.) Because of certain charges in regard to larceny from the house, which need not be set out.
(4.) Because the court refused to charge as follows: “ If the evidence shows that the house burglarized was at the time rented to another, and the time of rent had not expired,, it was then the dwelling of the tenant, and not the dwelling of B. D. Holcombe, and you could not find the defendant guilty under this indictment; and if the evidence shows that the property found in the possession of the defendant was the property of A. S. Holcombe, and not the property of B. D. Holcombe, as charged in this indictment,, you could not find the defendant guilty of larceny from the house.”
The motion was overruled, and the defendant excepted.].