John Anderson v. The State, 17 Tex. Ct. App. 305

Willson, Judge. This conviction is for burglary committed in the daytime. The place entered by the defendant was an office inside a hardware house. This office is described by the owner or occupant thereof as follows: “It is about eight by ten feet in size. It is in one corner of the hardware room; is made of pickets; the pickets are four feet high and about one inch square, and about three inches apart. There is a plank on top of the pickets on one side, which was sometimes used as a desk or place to figure on. The door or gate of the office is made of fiat, sharp pickets, four feet high, and two inches apart.

This gate or door has a latch, and the gate opens to the outside into the main room, and the weight on the string on the inside pulls the gate shut whenever it is opened. The gate latches whenever it is pulled shut by^ the weight. There was an open space of about six feet between the top of the pickets and the ceiling of the house, and a person could get into the office by climbing over the pickets, without going in at the door or gate.” It is shown by the evidence that the doors to the hardware house were open.

Defendant went into the hardware house and into this office, and opened the door of an unlocked safe, and took therefrom. SO in money. There is no question as to defendant’s guilt of the theft of the money. There is in fact but one question presented by this record which it is necessary that we should discuss, and that is, was the office or place entered by defendant, and in which he committed the theft, a house within the meaning of the statute defining the offense of burglary?

By that statute a house is defined to be “ any building or structure erected for public or private use ... of whatever material it may be constructed.” (Penal Code, art. 709.) This definition is broad and indefinite, and fails to convey any very specific meaning as to what 'buildings or structures are intended to be embraced within it. Webster defines a “building” to be “a fabric, or edifice constructed ; a thing built, as a house, a church,” etc.

A “ structure,” he defines to be “a building of any kind, but chiefly a building of some size, or of magnificence; an edifice.” (Webster’s Dic., Words “ Building,” “ Structure.”) Mr.

Bouvier defines a building to be “ an edifice, erected by art, and fixed upon, or over the soil, composed of brick, stone, marble, wood, or other proper substance connected together, and designed for use in the position it is so fixed.” (Bouvier’s Law Dic., “ Building.”) All words used in the Penal Code, “ except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.” (Penal Code, art. 10.) ¡Now in common language, taking into consideration the context and subject-matter, is an office or place such as the one in question in this case, a “ building or structure?” What is such a place commonly called?

In this case, the witnesses call it an office, and by this designation, we think, such an apartment is commonly known? What, then, is the meaning of the word “office” in this connection? Webster defines it to be, “ the place where a particular kind of business, or service, for others is transacted; a house or apartment in which public officers and others transact business; as, the register’s office; a lawyer’s office.” (Webster’s Dic., “ Office.”) The apartment in question here comes precisely within the above definition.

It was the place where the account books, money, etc., of a lumber company were kept, and where the business of said company was transacted by their agent or clerk. It was a place partitioned off, and used separately from any other portion of the hardware house, for a particular business. It was in fact, and as commonly understood, a room in said hardware house, as much so as if its walls had been solid and close to the top of the ceiling.

It is well settled by the common law that a burglary may be committed on the inside of the main house; for though a thief enter the house through an open door; yet if, when within the house, he turn the key or unlatch a chamber door, with intent to commit theft, this is burglary. (1 Whart. Cr. Law, §§ 762, 763; 2 Bish. Cr. Law, §§ 97, 98; Martin v. The State, 1 Texas Ct. App., 525.) We are of the opinion that the place, office, apartment or room in question in this case comes within the meaning of a “ building,” “structure,” u house,” as used in our statute relating to burglary.

We think the evidence sufficiently proves that the office was entered by defendant by breaking. The slightest force constitutes a breaking, such as the lifting the latch of a door that is shut, the raising of a window, the entry at a chimney, or other unusual place. (Penal Code, art. 708.) In this case the evidence satisfactorily shows that the defendant entered the office where he committed the theft either by lifting the latch of the door thereto, or by climbing over the picket inclosure, and if he entered by the latter mode, it would be entering at an unusual place and would be a breaking, under our statute.

There is no error in the charge of the court. It presents correctly and clearly all the law of the case. LTor did the court err in refusing the special charges requested by defendant, because, to the extent that the same are correct and applicable, they were substantially embraced in the charge given to the jury. We perceive no error in the conviction, and the judgment is affirmed. Affirmed. [Opinion delivered December 10, 1884.]