¶1 — The The original opinion was rendered on a misapprehension and is withdrawn. Appellant was convicted in the District Court of Cass County of the offense of blowing up a building by means of gunpowder or other explosive, and his punishment fixed at two years in-the penitentiary.
¶2 It is alleged in this indictment that said building was a dipping vat, same being a building not enclosed with walls and covered. Article 1214 of our Penal Code makes the wilful burning of a building which is not enclosed with walls or not covered, an offense which may be punished by confinement in the penitentiary. Appellant moved to quash said indictment because it charged no offense against the laws.
¶3 Arson is defined by Article 1200 of our Penal Code, as the wilful burning of a house. The explosion of a house by the use of gunpowder, etc., is made arson by the terms of Article 1205, P. C., Chapter 1 of Title 17 of said Code deals with arson. Chapter 2 of said title deals with “other wilful burnings,” and the first article of this latter chapter, Article 1213 P. C., is as follows: “The rules and definitions contained in the preceding chapter with respect to arson apply also to wilful burnings .under the provisions of this chapter, where they are not clearly inapplicable. ”
¶4 Article 1214 next succeeding, is in part as follows: “Burning other buildings, hay, lumber, etc. — If any person shall wilfully bum any building not coming within the description of a house as defined in the preceding chapter, ... he shall be punished by confinement in the penitentiary not less than two nor more than five years; or by fine not exceeding two thousand dollars.”
¶5 Two questions here arise: Is the explosion of a building which lacks either walls or a roof, made punishable by Article 1214, supra, and, second, — is a dipping vat a building within the comprehension of said article? The first inquiry addresses itself to the indictment; the second, to the proof. Article 1205 of Chapter 1 of said title is as -follows: “The explosion of a house by means of gunpowder, or other explosive matter, comes within the meaning of arson.”
¶6*219 This lays down a rule applicable to certain cases of explosion and states that if the subject of such, explosion be a house, i. e., a walled and roofed building or structure, the offense is arson. What if the exploded building have walls and no roof, — or vice versa? The answer seems plain by reference to Article 1213, supra, which in terms makes the rules and definitions laid down in Chapter 1 with reference to arson, apply to other wilful burnings, — as defined and punished under Chapter 2, unless “clearly inapplicable.” The wilful burning of a building with walls and roof, is arson under Chapter. The wilful burning of a building which lacks either walls or roof, is “other wilful burning” under Chapter 2. One of said offenses is given a graver punishment than the other, but otherwise the only difference lies in the character of the building; ^therefore if it have walls and a roof, its explosion is arson, but if it lacks either walls or roof, its explosion would be “Other wilful burning.” There seems to us no escape from this plain construction of Article 1213, supra, and so concluding we hold that the indictment charged an offense under Chapter 2 of said Title.
¶7 It was not necessary to allege that as a result of the explosion fire was communicated to the building. The law fixes the character of the offense committed when the allegation be that the house or other building be blown up by the use of gunpowder or other explosive, and this is true whether fire is communicated to the building or not. Landers v. State, 39 Texas Crim. Rep., 672. The fact that the building be denominated a dipping vat in the indictment, would not present ground for quashing same," it being clear that no house or building could have its character fixed by a name; nor would the fact that there is no such offense eo nomine as burning or blowing up a dipping vat, justify the quashing of said indictment.
¶8 The trial court told the jury in his charge that a dipping vat was a building within our statutes against wilful burning, but that same was not a house, and the exceptions to this charge together with the complaint of the insufficiency of the testimony, present for our consideration the second question above referred to.
¶9 The proof showed the dipping vat in question to have been built of cement furnished by the county, the work of erection being donated by citizens of the community in which same was located, and the vat being búilt on land belonging to a Mr. Tollison. Said vat was described in the testimony as being three or four feet wide, six or seven feet deep, and about twenty-seven feet long, the walls and floor being of concrete and sunk in the ground, the upper edge of the walls being near the surface of the soil, the exit end sloping to enable cattle to get out after being dipped. The structure had walls but no roof. Was it a building as contemplated by Article 1214, supra? In Yol. 6 of Cyc, pp. 115-116, appear many definitions of a building, among which we find: “A structure, an edifice, . . . designed for use in the *220 position in which it is fixed, . . a fabric constructed, a thing built, a structure or edifice enclosing space within its walls.” Many-other definitions will be found in Words & Phrases together with citation to many authorities. The material of which such structure is built is immaterial. That it is a structure less than a house, is evident. That it has walls but no roof, is beyond question. To be a building, or even a house, it need not be above ground, for a basement, a dugout having a dirt floor and roof, a cellar located underground, — have all been held to be houses within the statutes making entry of a house, burglary. The structure of the vat in question is such that it has walls and a floor of cement; space is enclosed by the walls; a wider space and a roof and same could be a house fit for human habitation. In our opinion said structure was beyond doubt a building within the meaning of that term in Article 1214, supra, and one whose explosion would be punishable thereunder. There was no controversy as to the structure of the vat, and the assumption of uncontroverted facts in the charge was not erroneous. If there had been conflicting testimony regarding the fact that said structure had walls and enclosed space and only lacked a roof, such assumption of fact might be erroneous.
¶10 There is complaint at the charge for telling the jury that if they believed said vat was then and there on premises in the possession of Jeff Tollison, occupied by Jeff Tollison, etc., they should find appellant guilty. No issue affecting the unlawful quality of the act of appellant, turned upon or was in any way affected by said charge. The land upon which said vat was located belonged to Tollison, and he had made no deed to Cass county therefor. Ordinarily in the absence of some written agreement to the contrary, any construction entering the soil becomes a part of the realty. The charge was not erroneous for its failure to submit to the jury the question of ownership in Cass county, or in Cass county and Tollison. Ownership of a burned building may be proved by oral testimony. Wylie v. State, 34 Texas Crim. Rep., 515; Hester v. State, 51 S. W. Rep., 932; Anderson v. State, 71 Texas Crim. Rep., 27, 159 S. W. Rep., 847. The ownership not having been alleged in appellant, the allegation thereof becomes of materiality .only for the purpose of identifying the property destroyed, and the courts will not submit issues involving title, unless the testimony makes it reasonably apparent that the allegation in this regard was misleading and one from which the accused was not put upon notice of the particular offense charged. Wylie v. State, supra.
¶11 Part of the descriptive averment in the indictment of the vat was, that it was “a building . . . not enclosed by walls and covered.” Upon his construction of the testimony and asserting a variance between the proof and such allegation, an instructed verdict was asked, by appellant and also special charges upon this issue. Ap *221 pellant is in error. “A building . . . enclosed by walls and covered,” — must have both walls and a cover, and is a house under the law of arson. “A building . . . not enclosed by walls and covered” is a building which lacks either walls or a roof, and is, therefore, not a house, but is such building as is contemplated by article 1214, supra.
¶12 The confession of appellant that on the same night the vat in question was blown up, he blew up other dipping vats, was admissible as showing system, identity and intent, and the admission of such testimony was proper and was correctly restricted in the charge of the court. The refusal of a special charge restricting such testimony to the question only of intent presents no error.
¶13 Mr. Hardesty, who was bailiff for the grand jury, was permitted to be in the grand jury room and aid in the examination of certain witnesses. He was not consulted by any member of the grand jury with regard to the presentation of the bill of indictment, nor was he present during any discussion or deliberation of the grand jury with regard to finding same. A motion to quash the indictment based on the presence of Mr. Hardesty in the grand jury room as above stated, was properly overruled. We do not think the practice of having persons other than the grand jury and the State’s attorney present in the grand jury room while witnesses are being questioned, is to be encouraged, but if such presence extend no further than during the questioning of a witness, and it is shown that no consultation or deliberation of the grand jury was had in the presence of said outsider, no error appears. Mr. Branch cites in Sec. 484 of his Annotated P. C. many authorities upon this proposition.
¶14 Complaint is made of the omission to instruct in the charge as to the meaning of the word “wilful”. If from the case made by the proof there was any possible defensive issue referable to lack of wilfulness in the blowing up of the dipping vat in question, such omission might be serious, but we are forbidden by Article 743 of our Code of Criminal Procedure to reverse causes for errors in the charge unless same appear reasonably calculated to injure the rights of the accused or affect the fairness of his trial. The blowing up of this dipping vat resulted from no accident or mistake, and the record suggests no reason for same except that of objecting to its presence and use as a means of enforcing the law requiring the dipping of cattle in an effort to exterminate fever carrying ticks.
¶15 We have not discussed seriatim the special charges refused, nor all the bills of exception, but our opinion disposes of the contentions raised regarding each and all of them:
¶16 Binding no error in the record, the judgment will be affirmed.
¶17 Affirmed.
¶19 December 19, 1923.
¶20 — More More mature consideration upon motion for rehearing has led us to believe we were in error in our former affirmance of the judgment.
¶21 The law relative to arson is found in Chapter 1, Title 17, P. C. After defining “arson.” as the “wilful burning of any house, etc.” (Article 1200 P. C.) the next article defines a house; then in order that it might be plain what character and extent of burning would make the offense of arson complete Article 1202 provides that the “burning is complete when the fire has actually communicated to a house, though it may be neither destroyed nor seriously injured.” Articles 1203 and 1204 deal with the design and intent of the party accused; then appears Article 1205 which is invoked in aid of the present prosecution; it reads: “The explosion of a house by means of gunpowder, or other explosive matter, comes within the meaning of arson.” The effect of this article was to create a new offense, call it arson and punish it as such which otherwise would not have been arson under the law, unless fire was communicated to the house by means of the explosion. This court recognized such to be the case in Landers v. State, 39 Tex. Crim. Rep., 671, 47 S. W. Rep., 1008, which held that unless fire was communicated to the house by the explosion the prosecution should not have been under the arson statute (Art. 1200 P. O.) but under the explosion statute (Art. 1205 P. O.). When we go to the next chapter (2 of Title 17) the first article therein (1213) reads: “The rules and definitions contained in the preceding chapter with respect to arson apply also to wilful burnings under the provisions of this chapter where they are not clearly inapplicable.” The next article (1214) denounces the wilful burning of a building, which is not a house, stack of corn, hay, fodder, grain, flour, boards, fences, etc. Nowhere in chapter 2 does it denounce as a crime the explosion of such property. Our original opinion was based on the proposition that Article 1213 (supra) making the rules and definitions as to arson apply to other wilful burnings, brought into chapter 2 the provisions of article 1205 relative to the explosion of a house, and made the explosion of any property included in the provisions of chapter 2 a wilful burning whether fire was communicated to the property or not. We have concluded this proposition is not sound. The “rules and definitions” referred to in Article 1213 as applicable to other wilful burnings relate to the communication of fire to the property as making the other “wilful burning” complete, whether the property be destroyed or not, and as to the design and intent of the accused, etc. If the explosion of a stack of hay, or of any other property described in said chapter 2 communicated fire to it the offense of “wilful burning” would be complete *223 whether it was totally destroyed or only slightly injured, by reason of the rules and definitions as to. arson being applicable. But to hold that the explosion of such property which does not communicate fire to it is a “wilful burning” seems carrying th.e doctrine of intendment dangerously far. Again reverting to Article 1205; the crime there denounced is not truly arson, but the explosion of a house is made an offense whether is burn or not; -the statute says it comes within the meaning of arson when applied to a house and makes it punishable as such. If article 1205 did not create a new offense then one who explodes a house could be charged simply with arson under Article 1200, and upon proof of the explosion be convicted of arson whether or not fire was communicated to the house as a result of the explosion. But as we understand the opinion in Landers v. State, (supra) this is exactly what may not be done. If the explosion sets fire to the house surely the prosecution could proceed under the arson statute (Art. 1200), but if the explosion does not so communicate fire to the house the prosecution must be based on and proceed under Article 1205. In the arson and explosion statutes some similarity may be found to our statutes defining burglary (Art. 1303 P. C.) and burglary of a private residence, (Art. 1305 P. C.) which latter are held to be distinct offenses, necessitating different allegations to charge the offenses. Osborne v. State, 42 Texas Crim. App., 557, 61 S. W. Rep., 491; Halley v. State, 58 Texas Crim. Rep., 425, 126 S. W. Rep., 598. The Legislature could have denounced as a crime the explosion of any property included in chapter 2 of title 17 and called it a “wilful burning” even though in fact the property was not burned, nor even scorched by the explosion, just as the explosion of a house was made a crime and called arson. It is not the name given to the crime defined that controls so much as the elements of the crime itself. The law making body may still make such layv and may include dipping vats among hay, fodder, corn, etc., by amending Article 1214, or it may make the explosion of a dipping vat a felony independent of any present statute.. We have concluded that the provisions of Article 1205 denouncing the explosion of a house as an offense cannot by the terms of Article 1213 be regarded as such “rule” or “definition” as may be brought forward as applicable in aid of the other provisions of Chapter 2, of Title 17, but that said Article 1205, however it be classed or named, does in fact create a distinct offense applicable to houses only, and is therefore not available in the present prosecution.
¶22 My brother Morrow is of opinion that a dipping vat constructed as was the one described in the present case is not a “building” under Article 1214. He may express his views relative to that matter. The present writer has refrained from discussing it deeming it unnecessary in disposing of the case. If Article 1205 cannot be brought forward in aid of Article 1214 it is immaterial whether or not the dipping vat was a “building.”
¶23*224 We believe one who destroys a dipping vat is not punishable under Article 1214, but may be proceeded against under Article 1235 of the P. C. which reads thusi:
“If any person shall wilfully and mischievously injure or destroy any growing fruit, corn, grain, or other like agricultural products, or if any person shall wilfully or mischievously injure or destroy . any real or personal property of any description whatever, in such manner as that the injury does not come within the description of any of the offenses against property otherwise provided for by this Code, he shall be punished by fine not exceeding one thousand dollars: provided, that when the value of the property injured is fifty dollars or less, then in that event, he shall be punished by fine not exceeding two hundred dollars.”
¶24 The motion for rehearing is granted, the affirmance set aside, the judgment of the trial court reversed, and the cause remanded.
¶25 Reversed and remanded.