This case was affirmed at the Dallas term, and, on appellant's motion for rehearing, the same was granted and the judgment reversed and the cause remanded. The decision was predicated on the construction of the amendment of 1899 to our statutes on burglary. See Acts 26th Leg., 318. We held, following Osborne v. State, ante, page 557, that said amendment made burglary of a private residence a distinct offense, and that the indictment was defective in failing to make the allegations required in the amendment. In deciding this case, on motion for rehearing, our attention was not called to the facts showing that it was a daytime burglary, nor the peculiarities of the amended statute, and consequently we overlooked the fact that the amendment relating to the burglary of a private residence by force, threats or fraud, refers to a nighttime burglary, or if a daytime burglary, entering a private residence and remaining concealed therein until night, with intent in either case of committing a felony or the crime of theft. The Assistant Attorney-General in the present motion for rehearing has called our attention to the terms of the statute as above suggested, and insists that the facts here show a daytime burglary of a private residence, and that the amendment in question does not apply to this character of case. An examination of the record bears out the contention of the State in this regard, and we accordingly hold that the facts here shown do not come within the purview of the amended act, as the burglary of a private residence in the nighttime. The daytime burglary of a private residence is not *Page 607 affected by the new statute, but is left as an offense under article 838, Penal Code, as simply the burglary of a house. The indictment is a good indictment for the burglary of a house, although a private residence, in the daytime. We accordingly overrule the case of Osborne v. State, supra, and the cases which may have followed that. State's motion for rehearing is granted; and the former order reversing the judgment and remanding the cause is set aside, and the judgment is affirmed in accordance with this and the original opinion.
Affirmed.