
    Ed Love and Floyd McDonald v. The State.
    No. 5.
    Decided June 23, 1909.
    Rehearing denied February 9, 1910.
    Burglary—Insufficiency of the Evidence.
    See opinion for evidence held to be insufficient to support a conviction for burglary.
    Appeal from the District Court of Tom Green. Tried below before the Hon. J. W. Timmins.
    Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      A. R. Burges and Lee Upton, for appellants.—Cited cases in opinion.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   BROOKS, Judge.

Appellants were convicted of burglary and their punishment each assessed at two years confinement in the penitentiary.

The evidence in this case is insufficient to support the judgment of conviction. There is no positive identification, as we read the record, of the goods alleged to have been taken out of the burglarized house. This in substance is all the testimony that goes to connect appellants with the burglary of the house. They were seen in or near the house a short while before in the town of San Angelo, but various other parties were evidently in or near said house about said time, but they did not and could not have burglarized the house at the time they were seen near the house, since there is no evidence suggesting that they did. Furthermore, the evidence in this case shows that the house in question was burglarized on two or three different occasions by someone. Now, goods found in possession of either of the defendants, where the evidence does not show a cooperation, and acting together on the part of the defendants, in any given case of burglary, would not be admissible testimony against the other. A good deal of the evidence introduced is of this character. For a. discussion of this matter see the following authorities: Hill v. State, 44 Texas Crim. Rep., 603; Herndon v. State, 50 Texas Crim. Rep., 552.

[Rehearing denied February 9, 1910.—Reporter.]

On account of the fact that the evidence is insufficient to support the verdict, the judgment is reversed and the cause remanded.

Reversed and remanded.  