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: 388
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388 TAYLOR V. THE STATE. [Term of
Opinion of the Court.
Braden, as a porter, and had been so employed for five or six
months previously. His business, as stated by one of the
owners of the house, was to clean the bar and fixtures, sweep
the room, clean behind tables, run errands, etc. The bills in
question were taken by the defendant from the cash-drawer
while he was behind the bar attending to his usual duties, as
appears from the evidence of the bar-keeper.
We are of opinion that the defendant was a domestic servant
of the house at the time he took the money, in the meaning
of Article 736 of the Code, and that the penalty for theft
from a house, under Article 764, was not the measure of punishment
in this case.
A domestic servant having the entry into the house, a theft
committed by such person after entry, otherwise than by an
actual breaking, is excepted out of Chapter VI. of the Criminal
Code, defining and punishing burglary, and is only punishable
as simple theft, as provided by Article 736 of the same chapter.
In such case, the punishment should be assessed with reference
to the value of the property, as directed by Articles 2394,
2395 (1 Paschal's Digest) as amended by the Act of November
12, 1866 (2 Paschal's Digest, Article 6547). The charge of
the court should have been qualified by giving the charge
asked by defendant, and refused.
The question here presented was decided at Austin, and
again at Tyler at the last term, and further discussion is
deemed unnecessary in the present case.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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Texas. Supreme Court. 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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/396/: accessed May 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .