Shornweber v. State

DAVIDSON, Presiding Judge. Appellant was convicted of burglary, his punishment being assessed at twelve years confinement in the penitentiary. There are two propositions in the motion for new trial, first, the undisputed evidence shows that the house burglarized was a private residence, and, second, the district attorney used remarks during his argument which were objectionable and injurious. To the second ground it may be stated that these matters are not verified in any manner or perpetuated'by bill of exceptions, and, therefore, can not be considered. To the first ground it may be replied we are of opinion that the evidence does not show burglary of a private residence. The indictment contains two counts, in the ordinary form, charging burglary at night and in daytime. Nowhere in either of these counts is it undertaken to charge that the house burglarized was a private residence. The theory upon which this contention is made is that in one part of the house the alleged owner had a room in which he slept. The burglarized house was a jewelry establishment, one of the front windows being broken by a rock and the jewelry taken through this aperture. The alleged owner slept in a different part of the house from that occupied as the jewelry establishment. The alleged injured party slept in another part of it on a little gallery between the lower floor and the roof, elevated about ten feet from the floor. This will not constitute the store a private residence within the meaning of the statute. This matter was discussed in Alinis v. State, 63 Texas Crim. Rep., 272, and same style of case, page 371 of same volume. There are other questions suggested in the brief, but are not presented by bill or motion in the record. They are suggested here for *391 the first time. Under the ruling of this court these matters can not be reviewed. As the record is presented the judgment is ordered to be affirmed. Affirmed.