
    CRAIN v. STATE.
    (No. 9343.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.
    Rehearing Denied Nov. 25, 1925.)
    1. Burglary <&wkey;45 — Evidence held to sufficiently identify defendant.
    In prosecution for burglary, evidence held to sufficiently identify defendant to make question for jury.
    On Motion for Rehearing.
    2. Burglary <&wkey;4l (4) — Evidence held to sufficiently establish a forcible entry or breaking.
    In prosecution for burglary, 'evidence held to sufficiently establish a forcible entry or breaking.
    Commissioners’ Decision.
    ' Appeal from District Court, San Saba County; J. H. McLean, Judge.
    Arawell Crain was convicted of burglary, and he appeals.
    Affirmed.
    N.' C. Walker, of San Saba, for appellant.
    Sam D. Stinson, State’s Atty., of Greenville, and Nat Gentry^ Jr., Asst. State’s Atty., of Tyler, for,the State.
   BAKER, J.

Appellant was tried and convicted in the district court of San Saba county for the offense of burglary and his punishment assessed at two years in the penitentiary.

The record is before us without any bills of exceptions, and the only question raised by appellant in Ms brief is tbe insufficiency of tbe evidence to sustain tbe conviction. Tbe state relied upon tbe testimony of tbe nigbt watchman, Lewis, for a conviction, who testified positively upon tbe trial to tbe identity of tbe appellant and one Crowley being at or near tbe scene of tbe alleged burglary with each a sack of pecans on tbeir shoulders, which the state contended bad been taken from tbe store of McConnell & Sons by said parties. Tbe appellant did not testify, but proved by several witnesses that said witness Lewis told them be did not know who the parties were that he saw and shot at at the place and tbe time in question, all of which was denied by him. Witness Carroll testified Lewis told him the next morning that it was defendant and Crowley he found behind the warehouse.

It is also contended by appellant,that the state failed to show an entry by force. Said witness Lewis, after describing how the door was fastened with hook and chain, stated': “So the door could not be slipped either way except by pulling out at the bottom. * * *

The place of entrance to the building was through this opening at the bottom of this door, and this door was open in this manner, and I pulled it back in place.” This evidence was admitted without objection or showing as to whether the witness knew how the entrance was made or was' giving his opinion; however, as presented, it is binding on this court after the jury passed upon it.

The witness J. P. McConnell testified that—

“This warehouse was closed in front; the front door was locked, and the back door of the building was locked with a catch on each end of the door. * * * The warehouse had windows, but they were fastened up and were not used.” i

J. T. McConnell testified that when Lewis notified him of the alleged burglary that be immediately went down town to his store and found tbe pecans near tbe building on the outside, and that next morning after opening up the store he found “these pecans were missing,” and went ‘into details showing how the pecans bad been arranged 'in sacks prior thereto. All of these matters were, properly left to the jury, and they found against appellant’s contention in this case, which is binding on this court. After a careful consideration of the record we are forced to the conclusion that the judgment should be and the same is hereby ordered áffirmed.

PER CURIAM.

The foregoing opinion of tbe Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant urges that we were wrong in holding the evidence sufficient to show a breaking of tbe alleged burglarized building. The case was tried on the theory that the state relied wholly on circumstantial evidence. The proposition now combated by appellant in his motion might be supported by circumstantial evidence. On the morning after tbe nigbt of tbe alleged burglary, the back door of the building was found to be open. It was a sliding door, and the door was so opened as that it was standing at an angle — an unusual angle, as it appears to us from an inspection of the record. The alleged burglarized building belonged to J. W. McConnell, and was used as a warehouse by himself and J. T. and J. P. McConnell, each of whom testified and stated that they did not authorize appellant to enter the building or take pecans situated therein. With reference to the building, J. P. McConnell testified as follows:

“This warehouse was closed in front. The front door was locked, and the back door of the building was locked with a catch on each end of the door. At the bottom there is a hook on each end of the door, and then there is another catch up higher. * * * The only way one could enter the building would be through the doors.”

J. T. McConnell testified:

. “With reference to the doors, the door on the rear was locked on the north end. * * * When it is fastened shut, one could prize open or shove it out from the bottom so one could open it without unfastening the other side. * * * By prizing the bottom of the door out on the south side, you epuld unfasten the lower hooks. * ’ * * It is possible for the door to be opened from the outside like I have stated by pulling against it this way (showing), and reaching and knocking the hook up, but it could not be opened so it would slide back two feet, but could be opened by prizing the bottom part of the door and reaching and knocking the hook loose. The door was not unfastened on the north side of it.”

Jeff Lewis testified that the back door, when examined after the burglary, was found to be open a little ways. He said the door was fastened with a hook and chain on the inside of the house, but the door could be pulled out at the bottom so that the hook could be unfastened and the door prized or pulled so that the top part of it would go one way and the bottom part the other, and entrance be thus effected. We think the testimony sufficient to show, circumstantially at least, that the door was dosed and fastened with the hooks the night before, as stated by Mr. J. P. McConnell, and that being found open in an unusual way when examined a short time after midnight, and the pecans being taken, and appellant being observed in the vicinity, furnish sufficient basis for the jury, under the charge of the court, to arrive at the conclusion of guilt.- So believing," the motion for rehearing will be overruled. 
      <S=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     