(dissenting).
The offense denounced by Art. 95, P.C., is one in the nature of theft and embezzlement in that it makes unlawful the fraudulent taking of the property of another.
The indictment in this case contained multiple counts charging the fraudulent taking by appellant of a house, and the lumber of which it was constructed, which belonged to the City of Houston and which *530had come into his custody by virtue of his being an officer or employee of an officer of said. city.
From those counts, the trial court submitted to the jury, by the following instruction, one offense as one transaction:
"Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Roy Floyd, on or about the 14th day of February, A. D. 1955, in the County of Harris and State of Texas was an officer, or was employed by an officer, of the City of Houston, Texas, a municipal corporation, to-wit, Director of the Treasury of said City, and that there had come into and was then and there in defendant’s custody or possession by virtue of his office or employment a house located at 2601-2601 ½ Nance Street in the City of Houston, and the lumber of which said house was constructed, and that said house or lumber was personal property of value belonging to such city, and the said Roy Floyd did then and there fraudulently take, misapply or convert the same to his own use, you will find the defendant guilty and assess his punishment at confinement in the State penitentiary for any term not less than two years nor more than ten years, as you shall determine and say by your verdict."
Under that instruction to the jury, they returned a general verdict finding appellant guilty, as charged.
Judgment was entered in accordance with that verdict and sentence thereon was duly passed finding appellant guilty of fraudulently taking and converting personal property belonging to the City of Houston.
In the light of such facts it is apparent that the alleged fraudulent taking — that is, theft — of the house and lumber of which it was constructed was one indivisible transaction, and the trial court so construed and so treated it in his charge and the jury so found by their verdict.
• It is apparent, therefore, that appellant stands here convicted of the fraudulent taking of the house and lumber of which it was constructed, for if he stole the house he stole the lumber of which the house was constructed, and, conversely, if he stole the lumber of which the house was constructed he stole the house.
By motion to quash the indictment, and by other means, appellant insisted in the trial that a house is not the subject of theft or fraudulent acquisition, because it is not and cannot be corporeal personal property and is therefore incapable of being fraudulently taken and converted, as such, to the use and benefit of another.
To my mind, a house cannot be the subject of theft in this state. Speaking through Judge Graves in the case of Walles v. State, 136 Tex.Cr.R. 509, 126 S.W.2d 989, 990, this court definitely and clearly so decided, when it said:
“We also find ourselves at a loss to understand how any person can be guilty of the theft of a ‘house’ as is charged in this indictment. ' Theft is the fraudulent taking of corporeal personal property. A house is a part of the realty and not personal property.”
Notwithstanding such direct and positive language as also the correct legal conclusion announced thereby, my brethren refuse to follow that holding or accept such as a correct proposition of law. Just why the majority of the court refuse to follow that pronouncement I am unable to ascertain from their opinion. The only conclusion appears to be that they reject it as being incorrect, for if they entertained any other view they could not have affirmed the conviction under this record.
The correctness of the holding in the Walles case cannot, in my opinion, be doubted. The following supports me in such opinion:
In 1889, the legislature passed what became Art. 791 of the Penal Code of 1895, *531by which it was made unlawful for any person to wilfully or mischievously injure or destroy any real or personal property of another in such manner as that the injury did not come within any of the offenses otherwise specified by the Penal Code.
Under that statute, a conviction for tearing down and removing a house from the property of another was sustained by the Supreme Court of this state when that court had appellate jurisdiction of criminal cases, Ritter v. State, 33 Tex. 608.
The provisions of said Art. 791, P.C. of 1895, have been brought forward and are now incorporated in Sec. (1) of Art. 1350, Vernon’s Penal Code, by which it is made unlawful for one to wilfully injure or destroy any property belonging to another, of any kind whatsoever, without the consent of the owner.
Where the property injured or destroyed exceeds $50 in value the punishment therefor is fixed at not less than two nor more than twenty years, this being a heavier punishment than that fixed for theft of personal property over the value of $50.
The legislative history of Art. 1350, Vernon’s P.C., shows that when the legislature amended Art. 791, P.C. of 1895, provision was made to expressly include the injury or destruction of real property. That provision appeared as Art. 1235, P.C. of 1911, which statute was amended by the present Art. 1350, Vernon’s P.C.
By Sec. (2) of Art. 1350, Vernon’s P.C., the legislature was very careful to except from its provisions the wilful injury or destruction by certain means — such as arson— of certain types of property — such as growing timber and fences — covered by special statutes.
From this legislative history, as well as from the language of Art. 1350, Vernon’s P.C., it is to my mind clear that the legislature not only intended to but did make it unlawful for one to wilfully tear down or remove a house belonging to another without the consent of the owner, where the value of the house so removed or destroyed was over the value of $50, and the punishment fixed was greater than that affixed to the crime of felony theft.
Other statutes of our penal code demonstrate the correctness of the holding in the Walles case, supra, that a house cannot be the subject of theft.
I call attention to the timber-cutting statute, Art. 1379, P.C., where it is made unlawful for one to cut down or destroy merchantable timber from the land of another. So, the statutes, Arts. 1384 and 1383, P.C., make it unlawful to cut down or otherwise destroy any walnut or pecan tree on the land of another — all of which demonstrates that property attached to the soil cannot be subject to theft.
A house, defined by Art. 1395, P.C., is as follows:
“A ‘house’ within the meaning of this chapter, is any building or structure erected for public or private use, whether the property of the United States, or this State, or of any public or private corporation or association, or of any individual, and of whatever material it may be constructed.”
Under that statute, this court has consistently held that a house, to be such, must be attached to the soil. It has been held that the following do not constitute a house: a railroad car (Summers v. State, 49 Tex.Cr.R. 90, 90 S.W. 310), a showcase in the vestibule of a store (Clark v. State, 56 Tex.Cr.R. 494, 120 S.W. 892), a portable oil rig doghouse not attached to the realty but movable from place to place, Loftis v. State, 157 Tex.Cr.R. 569, 251 S.W.2d 411, and a portable box used for storing dynamite. Stoddard v. State, 120 Tex.Cr.R. 55, 47 S.W.2d 281.
In view of the holding above mentioned, the legislature, by Arts. 1403 and 1404, P.C., made it unlawful to burglarize a railroad *532car. So also did the legislature, by Art. 1404b, Sec. 2, Vernon’s P.C., make it unlawful to burglarize a vehicle, which is defined to be “a device in, upon or by which any person or property is or may be propelled, moved or drawn upon a highway, except a device moved by human power or used exclusively upon stationary rails or tracks.”
Such definition includes automobiles, motor carriers, and trailers of whatsoever kind or character.
The 1951 draft of Art. 1404b, V.A.P.C., Chap. 273, p. 447, Acts 52nd Legislature, made it unlawful for one to break and enter a vehicle with the intent to commit a felony or a misdemeanor. The emergency clause to the act sets out the reason for the passage of the act as emergency legislation as being that the law then existing •did “not adequately protect vehicles against breaking and entering”. Section 2.
Such constitutes a direct finding by the legislature that a motor vehicle or trailer was not and could not be a house, for if it were a house the burglary statute would amply protect against burglary thereof; also it constitutes a finding that a house exists, as such, only when attached to the realty.
In 1955, the legislature, by Chap. 71, p. 351, Acts Regular Session of the 54th Legislature, reenacted Art. 1404b, V.A.P.C., with one change therein — which was a change in the purpose and intent with which the breaking was done — to read “with the intent of committing a felony or the crime of theft” rather than “for the purpose of committing a felony or misdemeanor”, as in the 1951 act.
In its emergency clause, the 1955 act reiterated the fact that the existing laws did not adequately protect against breaking and entering a vehicle.
The statutes discussed firmly establish, in my opinion, the correctness of the holding in the Walles case, supra, that a house cannot be and the legislature has not intended that it be the subject of theft or fraudulent taking.
I am convinced that the appellant’s motion to quash tire indictment, as well as his motion for an instructed verdict, should have been sustained.
In addition to the foregoing, I express my serious doubt as to whether real estate belonging to the City of Houston can come into the custody or possession of an officer or employee of an officer of that city and be converted by the officer or employee to his own use, as is necessary to constitute a violation of Art. 95, P.C.
When one converts to his own use the property of another he has deprived the owner thereof of that property.
Unless that conversion can be accomplished, there can be no offense, especially under the embezzlement statute or Art. 95, P.C., where conversion is necessary to be shown in order to constitute such offense — all of which demonstrates, in my opinion, the wisdom of the legislature in punishing one for the wilful destruction of or injury to the real estate of another. Art. 1350, V.A.P.C.
I do not agree that this conviction may be sustained on the ground that, after the house had been severed from the soil, appellant converted to his own use the lumber of which the house was constructed.
In the first instance, the trial court did not submit the case to the jury upon that theory, and therefore the jury’s verdict cannot be construed-as finding appellant guilty of an offense not submitted to them. Secondly, the indictment did not warrant the submission of the case upon that theory. Thirdly — and this, to my mind, is the most conclusive — the house or lumber of which it was constructed did not come into appellant’s possession, after it had been separated from the soil, by reason of his being an officer or employee of an officer of the City of Houston. His possession thereof *533•was the result of a violation by him of Art. 1350, V.A.P.C. The lumber of which the house was constructed was therefore never lawfully in his possession, as an officer or employee of an officer of that city.
I respectfully dissent to the affirmance of this case.