The land on which the house stood had been bought and paid for by appellant's father long before his marriage with appellant's mother. The house was built after the marriage, and paid for with proceeds from crops raised on the farm. Appellant's mother had died and the claim is here asserted that appellant and other children had some interest in the house by reason of the facts stated, and therefore was entitled to an instruction directing the jury to acquit her if the house was the property of the father, appellant and the other surviving children. This proposition is based on the claim that the evidence failed to support the averments of the indictment, which were that the "house was occupied by, and in possession of and the property of Zacharious Simms, and not being the property of appellant."
The provisions of our Penal Code (Arts. 1311 and 1312) very clearly point out when an owner may and may not burn his own house; in order that no misunderstanding might arise Art. 1313 in very positive terms provided that "One of the part owners of a house is not permitted to burn it." Where an indictment alleged the ownership of the house burned in a designated person, and the evidence shows that the house was owned by that person and his children, it has been held no variance. Kelley v. State, 44 Tex.Crim. R., 70 S.W. 20. "Arson is directed more against the possession and occupancy than towards the ownership of the destroyed property." Goldsmith v. State,46 Tex. Crim. 556, 81 S.W. 710. "For the purposes of a prosecution for arson the burned building is deemed to belong to the person who has the right of possession thereof." Texas Jurisprudence, Vol. 4, page 807; Tuller v. State, 8 Tex. Cr. App. 501. The house in question was the homestead of appellant's father. His right of possession can not be questioned. Appellant's presence there was by his permission. We fail to discover any merit in appellant's position on the question of law urged.
The motion for rehearing is overruled.
Overruled. *Page 55