Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 387

1875.] TAYLOR v. THE STATE. 387
Opinion of the Court.
ROBERT TAYLOR V. THE STATE.
THEFT FROM A HOUSE. Theft from a house by one having a right to enter
the building by virtue of his employment as a domestic servant, is not
punishable under Article 764 of the Penal Code, but only as simple
theft.
APPEAL from Lamar, tried below before the lion. John C.
Easton.
Kittrell, for the State.
REEVES, J. The indictment charges appellant with the theft
of two fifty-cent bills, lawful currency of the United States, the
money of McLeod, Hall & Braden, and which, as charged in
the indictment, was taken by appellant from their saloon, a
room in the iMicLeod Hotel, at Paris, in Lamar county.
The court gave in charge to the jury Article 764 of the Penal
Code, punishing theft from a house by confinement in the penitentiary,
not less than two years nor more than seven, as applicable
to this case, and refused to charge, as asked by appellant,
that theft from a house, when committed by a domestic servant,
is only a misdemeanor, and punishable as such by fine and
imprisonment, if the property stolen is under the value of
twenty dollars.
The jury convicted the defendant and assessed his punishment
at five years in the penitentiary. From the judgment of
conviction defendant appeals, on the grounds stated in his motion
for a new trial and motion in arrest of the judgment,
both motions being overruled.
We find no error in overruling the motion in arrest of judgment,
but we are of opinion that the new trial should have
been granted, for error in the charge of the court, and for refusing
the charge asked by defendant.
It was shown by the evidence on the trial that the defendant
at the time of the theft was in the service of McLeod, Hall &