
    DAVIS v. STATE.
    (No. 10855.)
    Court of Criminal Appeals of Texas.
    May 4, 1927.
    Rehearing Denied June 8, 1927.
    1. Criminal law <©=5814(17) — Failure to submit law of circumstantial evidence in prosecution for burglary, in which defendant admitted entering house, held not error.
    Where defendant, prosecuted for burglary of private residence, admitted entering house and taking money, failure to submit law of circumstantial evidence was not error, though entry at night alleged by state was only shown circumstantially; case not being wholly dependent on circumstantial evidence.
    On Motion for Rehearing.
    2. Criminal law &wkey;>8!4( 17) — Defendant’s admissions that he broke and entered into private residence is direct evidence thereof, as regards requirement of charge on circumstantial evidence.
    In prosecution for burglary, admissions by defendant that he broke and entered private residence is direct evidence thereof as regards requirement of charge on circumstantial evidence.
    3. Criminal law <&wkey;>784(I) — Instruction on “circumstantial evidence” is required when all facts necessary to make out case are deducible as inferences from other facts.
    Case may be said to be on “circumstantial evidence,” requiring instruction thereon, when all facts necessary to make out case are deducible as inferences from proof of other facts.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Circumstantial Evidence.]
    4. Criminal law <&wkey;8l4(l7) — Case in which one or more facts must be proved by circumstantial evidence does not require instruction thereon.
    Case in which most of main facts are shown by direct proof and one or more facts by circumstantial evidence is not one dependent wholly on circumstantial evidence so as to require instruction thereon.
    Appeal from District Court, Shelby County; R. T. Brown, Judge.
    Richard Davis was convicted of burglary, and he appeals.
    Affirmed.
    Sanders & Sanders, of Center, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, five years in the penitentiary.

The charge against appellant was the burglary of a private residence. The testimony seems sufficient to show that a private residence was entered by force by the appellant and certain money taken therefrom. Ap- j pellant admitted to the owner of the premises that he had gone into the house and taken the money. This was testified to. The onLy bill of exceptions appearing in the record was taken to the charge of the court for its failure to submit to the jury the law of circumstantial evidence. Appellant admitted to two men, who so testified, that he had opened the door of the house and gone into it and taken therefrom property. He testified on the stand on this trial that he did enter the house without the consent of the owner and take therefrom property. The contention made is that the state alleged burglary of a private residence by an entry at night, but that the fact of an entry at night was only shown circumstantially, and that the state met its burden of showing that such night entry was made only by circumstances, and that hence an instruction on the law of circumstantial evidence was necessary.

We are unable to agree with this proposition. On page 1294 of his Annotated P. O. Mr. Branch cites a number of authorities holding that when the breaking and entry of a building are shown by positive testimony, there need be no charge on circumstantial evidence, The rules relating to circumstantial evidence are of judicial construction. Numberless authorities are cited in the books which hold that, unless the case is wholly one of circumstantial evidence, it is not dependent upon that character of testimony, and it would not be error for the court to refuse to so charge. An inspection of this record shows that the case is not one wholly dependent upon circumstantial evidence.

Being unable to agree with appellant’s contention, the judgment will be affirmed.

On Motion for Rehearing.

Appellant earnestly insists that this is a case of circumstantial evidence, admitting that, if the case is not wholly dependent upon evidence of that character, then it was not necessary for the court to charge thereon. Looking to the statement of facts, we find proof of appellant’s admissions that he broke and entered the private residence in question. This was direct evidence. In Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193, this court states that the factum probandum in a burglary case is the breaking and entry. In Winn v. State, 82 Tex. Cr. R. 316, 198 S. W. 966, opinion by Judge Davidson, appears the following:

“If in appellant’s confession he had directly stated that he broke and entered the house, the trial court would have been correct in refusing to charge upon circumstantial evidence.”

In Owen v. State, 93 Tex. Cr. R. 145, 245 S. W. 704, the accused was charged with killing deceased by beating him with a gun and a singletree. On the trial appellant admitted having killed deceased by beating him. We held it not necessary to charge on circumstantial evidence, even though the accused did not admit heating the deceased with a singletree. In the instant ease it is plain that the state had direct testimony of the breaking and entry of the house; these being facts necessary to be proven in order to make out the case.

There was but one other question necessary of proof in a case of burglary of a private residence, viz. Was the entry at night? In Buntain v. State, 15 Tex. App. 520, Judge White said:

“If a court were required to charge the law of circumstantial evidence in all cases where reliance was had upon circumstances to establish any particular fact, then indeed there would be but few if any cases in which such a charge would not be required. But such is n'ot the rule. A charge upon circumstantial evidence is only required when the evidence of the main facts essential to guilt is purely and entirely circumstantial.”

In Glover v. State (Tex. Cr. App.) 46 S. W. 824, Judge Davidson, speaking for the court, says:

“The court did not err in failing to charge the law applicable to circumstantial evidence. Before a charge on this phase of the law is required, the case must be one wholly of circumstantial evidence. Appellant’s confessions were introduced in evidence.”

A case may be said to be on circumstantial evidence when all those facts necessary to make out a case under the law are deducible as inferences from proof of other facts. It cannot be said, when there is direct proof of most of the main facts showing guilt, that, because the state must prove some one or more facts by circumstantial evidence, the case is nevertheless one dependent wholly on that character of testimony so as to make it the duty of the court to so charge the jury.

Being unable to agree with appellant, the motion for rehearing is overruled. 
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