
    REMLINGER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 29, 1912.)
    Burglary (§ 41*) — Prosecution—Sufficien- • cy oe Evidence — Circumstantial Evidence.
    In a prosecution for burglary, evidence held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94^-103, 109; Dec. Dig. § 41.*]
    Appeal from District Court, Payette County; Prank S. Roberts, Judge.
    Otto Remlinger was convicted of burglary, and he appeals.
    Reversed and remanded.
    Robert E. Moss, of La Grange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, bis punishment being assessed at two years’ confinement in the penitentiary.

The indictment charges the ordinary burglary — by force, etc., did break and enter a house with intent to commit theft. We are of opinion the evidence does not support the conviction. Nobody put the defendant in the house, and 60 yards from the house was the nearest point at which appellant was seen by witnesses. A boy who was working close by the house, and ought to have known if appellant entered the house, and could have seen it if it occurred, as it was in broad daylight, did not see him go-to the house. While there are some suspicious circumstances, still the evidence falls short of the rule required in cases of circumstantial evidence.

The judgment is reversed, and the causé-is remanded.

PRENDERGAST, J., not sitting.  