Appellant was convicted of burglary in the 34th District Court of El Paso County, and his punishment fixed at two years confinement in the penitentiary. The alleged burglarized house was a stock-room situated on the sixth floor of a building used and occupied by the Popular Dry Goods Company, in the city of El Paso. Two walls of this stock-room were made of wire and beaver board. From the evidence there was an aperture at the top of one of said wire walls, twelve or fourteen inches high. It is also in evidence that since the building of said stock-room some months before this trial, some one had pulled a whole panel of beaver board loose, and that through this space one might enter said stock-room. It further appears that on one occasion in May, 1920, after the other employees had gone, at about seven o'clock at night, the watchman who was in said building, while making his round on the sixth floor, heard a noise in the stock-room, and looking through the wires, saw the appellant sort of stooping down, hiding himself under the shelving inside of said room. This witness asked him what he was doing up there, and appellant replied that he was at work on the fifth floor and heard some one walking on the sixth floor, and went up to see about it. The watchman told appellant that it was not his business to come up there, and that he should have reported the matter to the watchman. The stock-room door was locked at that time, but it seems that it could be *Page 297 opened from the inside without a key, and the watchman had appellant to open the door and come out. After searching appellant, the watchman carried appellant down, and the next day reported the matter to the manager. The watchman testified that he found nothing on appellant, but saw a box of shirts close to where he was hiding.
Mr. A. Schwartz, for the State, said that he and Maurice Schwartz employed all the help in said store, and told them what to do; that they had a porter or janitor for each floor of said building, and that appellant was such janitor or porter for the fifth floor. This witness further stated that appellant was head porter only in the sense that he had a key to a room where were kept towels and paper for the use of the porters in the mornings when they went to clean up; but that appellant had no charge of the other porters, and no supervision over them; that his duties were cleaning, sweeping, washing windows, show cases, etc., on the fifth floor of the establishment. There was no evidence whatever showing on what floor was the room in which the paper and towels for the use of the porters, were kept. That said room was not the stock-room is clear from the record, it being in testimony that appellant did not enter the stock-room by the use of a key, but that he entered through or over the wall.
Mr. Kiser testified that he had been connected with the Popular Dry Goods Company for ten years, and was manager for the receiving department and stock-room at the time of this alleged burglary, and that as such he had entire charge of the stock-room and the distribution of its contents; that appellant had no permission from him to enter the stock-room at any time; that appellant was head porter for awhile, and had occasion to come to witness for supplies for the porters, such as soap, mops, etc., which were furnished him by witness, but that appellant did not work in the stock-room; that witness usually closed and locked the door of the stock-room about ten minutes after six in the afternoons.
We have tried to give all the evidence bearing on the issue of domestic servant, inasmuch as this is the only question raised and presented here by the appellant. When the evidence had closed, appellant made a motion for an instructed verdict, upon the ground that he was a domestic servant, and the evidence had not shown an actual breaking of the burglarized premises; he also asked a special charge presenting to the jury the law of a burglary when committed by a domestic servant, and also reserved an exception to the main charge, because same failed to submit the law of burglary by a domestic servant. In order to dispose of these contentions, we have examined this record very carefully, in an effort to discover whether or not the evidence raised the issue as to whether appellant was a domestic servant, or an inhabitant of the alleged burglarized house, to-wit, the stock-room. We fail to find anything supporting such claim. The case of Jackson v. State, 43 Tex.Crim. Rep., seems to present an almost parallel state of facts. Jackson was a porter in a hotel, in the same building with which, and *Page 298 also under the same management, was a saloon, same occupying one room of the hotel building. Jackson's duties were to scour the floors, sweep, and clean up the corridors of the hotel; but not of the saloon. He was charged with burglary of the saloon, and claimed that the law of domestic servants was applicable, and that he was not guilty, because the evidence did not show an entry by actual breaking. This Court, speaking through its present Presiding Judge, held that Jackson was not a domestic servant as to the saloon, and that the refusal to submit the issue of domestic servant in that case was correct. The court said in its opinion that the evidence did not connect Jackson with the saloon as a servant in any manner whatever; that the fact that he was employed by the hotel management to scour the floors of the hotel, and to wash the spittoons and clean the corridors of the hotel, did not connect him with the saloon, though in a room of the same building. "The mere fact that the saloon belonged to, or was controlled by the management of the hotel, and that appellant was a servant in the hotel, does not constitute him a domestic servant in relation to the saloon any more that if the saloon had been rented to third parties."
We are of opinion that one whose duties do not entitle or require of him free access to the house or room in question, is not a domestic servant or inhabitant of such house or room, within the purview of Art. 1319, of our Penal Code, which requires an actual breaking, in order to constitute burglary by a domestic servant. No duties of appellant lay in the stock room in question, and the most that could be claimed for him in this behalf is that when supplies for the use of the porters were needed from time to time, he made his request known to Mr. Kiser, who had charge of the stock-room, and who furnished him such supplies therefrom. Many authorities hold that one whose duties lie outside of the house of his employer, is not a domestic servant, even though he may be called on to perform some occasional service in such house. Waterhouse v. State, 21 Texas Crim. App., 663; Williams v. State, 41 Texas Rep., 649; Jame v. State, 63 Tex.Crim. Rep.; Jackson v. State, 43 Tex. Crim. 260. That the stock-room in question was a house within the meaning of our burglary statute, is evident. Anderson v. State, 17 Texas Crim. App., 305; Jame v. State, supra.
The evidence failing to raise the issue of domestic servant, in our opinion, this disposes of all the contentions made by the appellant.
Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed. *Page 299
ON REHEARING. December 8, 1920.