In his motion for rehearing appellant contends that under the testimony of Mr. Kiser, a witness for the State, who had charge of the stock-room on the sixth floor, which was the room alleged to have been burglarized, the issue of domestic servant was raised. The following statement of Mr. Kiser is quoted in said motion as being that which principally raises said issue:
"He had occasion to enter the stock-room. He had charge of the janitors for five or six months and he used to come up and ask me for supplies for the house such as mops, soap and things used in the store, but he didn't work in the stock-room. He came to ask for stuff he needed to do his work in other parts of the building."
This quotation seems to us to show the opposite to what appellant claims for it, and, taken with other parts of the record, makes it plain that appellant's work and duties lay in other parts of the building, and that his only occasion for going to the stock-room was when Mr. Kiser was there, and then only to ask and receive from Mr. Kiser articles for use in that part of the building where lay appellant's work. His attitude was that of an outside servant or employee who has occasion to go to the residence or store-house of his employer for articles to be used in the outside work; or of one who went to a near by place to that of his employment for necessary articles for use in such place of employment. Mr. Kiser, in said quotation, speaking of the character of appellant's visits to the stock room, said: "He came to ask for stuff he needed to do his work in other parts of the building." Mr. Schwartz, who employed appellant and prescribed his duties, testified: "He had no business on the sixth floor. We have a porter for each floor. He was not the porter on the sixth floor." Nothing in the testimony of the witness Juaregi indicates that appellant had any business on the sixth floor. This witness was the watchman who found appellant in the stock-room on the sixth floor on the night in question, and asked him what he was doing up there, and told him it was not his business to come up there.
Our attention is called in the motion to certain authorities urged as sustaining appellant's contention, that the evidence raised the issue of domestic servant, and that, therefore, the law thereof should have been charged. Coleman v. State, 44 Tex. 109 [44 Tex. 109], is cited. We find no such case. Phillips' case, 42 S.W. Rep., 557, is a theft case decided on the point of ownership claimed by the State to be in the alleged owner, and by the appellant to be in another. The issue was as to whether the other person was the servant of the alleged owner or not, and the decision sheds no light on the point in the instant case. We are in accord with the Taylor case, 42 Tex. 387, in the view that a house *Page 300 porter whose work lies within a building, or part of a building, is a domestic servant in such building or part thereof. The Connor case, 85 Tex.Crim. Rep., 210 S.W. Rep., 208, seems strongly against appellant's contention. The accused in said case was employed in the alleged burglarized store as a deliveryman. There could be no question of his right of entry into said house. The burglary was at night, and this court said: "He had no authority in the house at night, and no right to be there by breaking; the breaking was by force from the outside." In the instant case appellant was found in the stock-room at night. The trial court submitted only an entry by force, and told the jury that before they could be warranted in finding appellant guilty, they must be satisfied from the evidence beyond a reasonable doubt that the entry was made by force directly applied to the building.
We adhere to the conclusion announced in our opinion and overrule appellant's motion for rehearing.
Overruled.