1. Burglary — Charge of Court — "House." — On a trial for the burglary of a fruit stand, the same being a boxlike structure in the shape of a piano box, about eight feet high, with shelves and counter, of sufficient proportions to admit of the entrance and standing up therein of the proprietor while making sales, Held, that the structure came fully within the term "house," as defined in article 709, Penal Code, and the court did not err in charging the jury that said structure was a house, and it was unnecessary to submit to the jury a question about which there could be no dispute.
2. Requested Instructions Refused — Want of Consent. — It was not error for the court to refuse to give appellant's requested instruction, to the effect, "that the State must prove the want of consent of the wife and daughter of the proprietor in his absence," the evidence showing that one V. managed the business at such time, and the indictment having charged the house to be occupied by said V.
3. Same — Charge of Court — Defensive Matter. — On a trial for burglary, where the consent of the wife and daughter of the alleged proprietor is claimed by accused, it is defensive matter to be shown by him on the trial, and it was not error for the court to refuse to charge that such want of consent must be proved by the State.
SIMKINS, JUDGE.
Appellant was convicted of burglary, and sentenced to three years in the State reformatory, from which he appeals.
1. The court did not err in charging the jury in this case that the structure burglarized was a house. The undisputed testimony shows the structure to come fully within the term "house," as defined in article 709 of the Penal Code. It is described as a fruit stand built somewhat in the shape of a piano box, about eight feet high, with shelves and counters; and the proprietor could, in making sales, stand inside or out of the structure, as he desired. It was unnecessary to submit a question to the jury about which there could be no dispute.
2. Nor did the court err in refusing the charge asked by appellant, to the effect that the State must prove the want of consent of Mrs. Conte and her daughter. The evidence shows that James Verdrine managed the business in the absence of G. Conte, the owner, and the indictment charged the house to be occupied by the said Verdrine. The fact that his mother and sister assisted in the sales and carrying on the business was immaterial, so far as the indictment was concerned. Code Crim. Proc., art. 426; Willson's Crim. Stats., secs. 1258, 1259. If appellant had the consent of Conte's wife or daughter, it was defensive matter to be shown on trial.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.