
    UTSLER v. STATE.
    (No. 7610.)
    (Court of Criminal Appeals of Texas.
    March 14, 1923.
    Rehearing Denied April 25, 1923.)
    1. Burglary <§=542(1) — Defendant’s unexplained possession of stolen property shortly after theft held to identify him as the criminal.
    In a prosecution for burglary, evidence, that the stolen property was found in defendant’s possession a very short time after the offense was committed, and that defendant failed to explain his possession thereof, ¡held sufficient to. identify defendant as the person who committed the crime.
    2. Burglary <§=345 — Truth of defendant’s testimony in explanation of possession of recently stolen property held for jury.
    In a prosecution for burglary, the truth of defendant’s testimony in' explanation of his possession of the stolen property shortly after the commission of the crime was a question of fact for the jury.
    3. Criminal law <§=3.1159(5) —Jury’s finding conclusive on appeal.
    The jury’s finding as to defendant’s defensive theory is binding on the Court of Criminal Appeals.
    Appeal from Criminal District Court, No. 2;Dallas County; C. A. Pippen, Judge.
    Willie Utsler was convicted of burglary, and be appeals.
    Affirmed.
    Will S. Payne, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in criminal district court No. 2 of Dallas county of the offense of burglary, and his punishment' fixed at two years in the penitentiary.

The record presents no bills of exception. The statement of facts shows without dispute the burglary of the house alleged in the indictment', the finding in appellant’s possession shortly thereafter of property taken from the alleged burglarized hous.e, and appellant’s confession that he was implicated in the burglary. The indictment is in regular form, and the charge of the court correctly presents the law.

No error appearing, an affirmance is ordered.

On Motion for Rehearing.

MORROW, P. J.

The injured party, Hogue, gave testimony showing that his house was broken into and property taken therefrom; that part' of the property was returned to him through the witnesses Phillips and Simmons. Simmons testified that he talked with the appellant shortly after his arrest and obtained from him information which led to the recovery of the stolen property; that appellant told him! where, the property could be found; and that, acting upon this information, he -did so, delivering it to the owner, who identified it.

Appellant testified that he had nothing to do with breaking into the tailor shop; that he had purchased the stolen property from one Tillery without notice of the fact that it was stolen.

We have discerned nothing in the record supporting the claim in the motion for rehearing that the conviction was upon the accomplice testimony. The only basis that we have perceived is the statement of the appellant in his testimony that he received the goods from Tillery. The evidence reveals no other connection of Tillery with the transaction. The stolen property was found in the possession of the appellant a very short time after the offense was committed. The burglary was proved by the owner, and the possession of the property recently stolen, unexplained, was sufficient to identify the appellant as the offender. See Branch’s Ann Tex. Penal Code, § 2463; Vernon’s Tex. Crim. Stat. vol. 1, p, 846, note 34. No statement explaining his possession of the stolen property appears to have been made by the appellant at the time of his arrest. The truth of his testimony upon the trial in explanation of such, possession was a question of fact for the jury. His defense theory arising from his testimony was submitted to the jury,' and their finding! is binding upon this court.

The motion for rehearing is overruled. 
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