This case was affirmed at a former day of this term, and appellant in his motion for rehearing criticises the statement contained in the original opinion, that "the State's testimony would show that appellant and another, with a battering ram, opened a door, entered a room of a store house, and took out some beer," alleging that there was no proof that the door was opened with a "battering ram." A.J. Cariker testified: "When I left at six o'clock the front door was closed and I locked the back door and when I got back there Monday the back door had been broken open." Luke Lucas testified that he knew appellant, and described the location of the building in the town, and then said: "This blacksmith shop was nearer to the room that this beer was in than the drug store was. They didn't remain about that shop over two minutes and then they got a bar or something, I don't know what it was, and went around between the shop and telephone office and went around to the rear end of the warehouse, the Tom Cariker warehouse; they went to the rear of that warehouse, to the back; that was Andrew Kinney and Percy Birdwell that went to the rear of that warehouse. At the time they went to the rear of the warehouse we were standing on the front gallery of the telephone office down stairs. When they disappeared around the rear end of that warehouse they were about 100 feet from where we were on the gallery I guess; I heard a noise around there, I heard knocking on the door and shaking on the door. . . . After we heard that thumping on the door we went around there; we went on around and we found the door open, well the door was just standing open about a foot and a half. We saw them around there, they had gone around where we first saw them there and we waited there and watched them and after awhile they went back around there and went in the house and we went around and as they came out they had their arms full of beer, we hid behind the corner and watched them come out and they had five or six bottles of beer and they saw us and Andrew I think made the remark, `we had had better go home,' just like that, he said it to Percy, says, `we had better go on home,' and they started up the street and we walked up nearly to the school house and got *Page 181 them and told them that Elmer Wallace said for us to take charge of them and we brought them back to the telephone office. We asked them where they got the beer and we told them we knew where they got it, that we saw them come out of the house and they said they would come back with us and we walked back down to the telephone office; we got two bottles of beer off of them and they were drinking a bottle apiece, when they saw us they dropped the beer to their sides and we brought it back to the telephone office."
John McKnight and other witnesses corroborate this testimony, and we think it justified the statement in the original opinion, at least it would show that the door was opened by force, and that is the material issue in a burglary case.
The only other contention in the motion for rehearing is that we erred in holding that the court did not err in his definition of a house. The authorities are so fully cited in the original opinion we do not deem it necessary to cite others. This contention is that a partition in a room, unless it be a permanent partition, would not make such room a house within the definition of our statute. If the partition is there at the time of the commission of the offense, we do not think how long it might or might not remain would be material. In this case the evidence shows, if appellant entered the house, be entered it by a door that was forced open, and even had other doors in the building been open at the time, yet if the entry was made at the back or side door by force, it would be burglary, and appellant forcing an entry at this door, the question of the partition wall becomes an immaterial issue.
The motion for rehearing is overruled.
Overruled.