
    SKIRLOCK v. STATE.
    (No. 10073.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.)
    On Motion for Rehearing.
    1. Criminal law <&wkey;784(l).
    Main facts to be proven upon charge of burglary, as respects necessity of charge on circumstantial evidence, are the breaking and entry.
    2. Criminal law <&wkey;784(l).
    If breaking and entry by accused is to be inferred from fact of subsequent possession of property stolen from burglarized house, it is then a case of circumstantial evidence, as respects necessity of instruction thereon.
    3. Criminal law &wkey;784(l) — Facts proven in burglary case may be in such juxtaposition to breaking and entry as to be equivalent to direct evidence, dispensing with necessity of charge on circumstantial evidence.
    IPaets proven in burglary case may be in such close juxtaposition to the breaking and entry as to be equivalent to direct evidence, thereby making instruction on circumstantial evidence unnecessary.
    4. Criminal law <&wkey;784(l)— Omission to charge upon circumstantial evidence held error, under evidence supporting conviction for bur- ' glary.
    Where conviction for burglary depended on testimony that defendant brought stolen property to car on return from house, on evidence of subsequent possession of property stolen and evidence warranting inference of breaking and entry, omission ¿o charge upon circumstantial evidence was error.
    <@=>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    Appeal from District Court, Stonewall County; Bruce W. Bryant, Judge.
    C. A. Skirlock was convicted of burglary, and he appeals.
    Reversed and remanded on rehearing.
    Lon Brooks, of Anson, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Appellant is under conviction for the burglary of a house belonging to Hugh Farrow. Punishment is five years in the penitentiary.

The evidence supports the verdict. The testimony of the accomplice witness is sufficiently corroborated to meet the requirements of the law under appropriate instructions upon the subject.

Only one bill of exception is found in the record. In it complaint is made that the court failed to charge upon circumstantial evidence. However, when the charge is examined it is found to contain a correct and complete instruction upon this subject. We are unable to understand the confusion in this regard, unless this record has been confused with those in other • prosecutions against the same appellant and one Williams. The judgment is affirmed.

On Motion for Rehearing.

It is now made to appear that the charge? of the court contained in the original transcript, and which embraced a charge upon circumstantial evidence^ was incorrect; that in fact the instruction to the jury contained no charge upon that subject.

The learned trial judge explains that he did not give a charge upon circumstantial evidence because the facts proven were in such close juxtaposition to the main fact sought to be established that in his opinion it was equivalent to direct testimony. In this respect we think the learned trial judge fell into error. The main facts to be proven upon a charge of burglary are the breaking and entry of the house. Where the main fact sought to be proved is a matter of inference from other facts in evidence, the case rests upon circumstantial evidence. If the breaking and entry by accused is to be inferred from the fact of, subsequent possession of property taken from the house, then it is a case of circumstantial evidence. Sullivan v. State, 18 Tex. App. 623; Robertson v. State, 33 Tex. Cr. R. 366, 26 S. W. 508. See, also, section 2478, Branch’s Ann. Tex. P. C.

An accomplice witness testified that she, appellant, and one Williams went around to the back of the house, got some water, and all returned to the car, where she and Williams remained; that appellant again went to the back of the house, and in a short time returned to the car bringing with him a number of articles which she enumerated. The owner of the house testified that when he left home he closed the windows and doors; that when he and his wife returned it was discovered that a window at the rear of the house had been broken and many articles taken from' the house. The articles stolen were later found in the house occupied by appellant, Williams, and the accomplice’ witness. Although the accomplice witness was at the rear of the house and in a position to' observe the condition of the windows before appellant went there the second time, we find no word throwing light on their then condition. It will be observed from the foregoing recital of the facts that no one saw the breaking of the house nor the entry, but the commission of the burglary by appellant was a matter of inference from the facts stated.

Facts proven in a burglary case may be in such close juxtaposition to the main facts to be proven (the breaking and entry) as to be equivalent to direct evidence. See section 2368, Branch’s Ann. Tex. P. O. In support of the foregoing proposition the fol-Towing cases are noted: Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 765; Smith v. State (Tex. Cr. App.) 90 S. W. 638; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406; Montgomery v. State, 55 Tex. Cr. R. 504, 116 S. W. 1160; Williams v. State, 65 Tex. Cr. R. 82, 143 S. W. 634; Soders v. State, 81 Tex. Cr. R. £06, 195 S. W. 1146; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Smith v. State (Tex. Cr. App.) 90 S. W. 638. However, examination of these authorities reveals that in each case the party charged with the burglary, was actually found inside the burglarized house. Such is not true in the present instance. (Por an exhaustive discussion of this subject see Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193.) While the testimony of the accomplice that appellant brought the stolen property to the car is a strong fact showing his guilt of burglary, yet it was this and subsequent possession of the stolen property, in connection with the testimony of the owner of the house, from which the fact of breaking and entering was to he inferred. This leaves it a ease dependent upon circumstantial evidence. The court’s attention was called to the necessity of a charge upon the subject by exceptions to the court’s instructions in a very specific manner..

Por the reasons stated the .motion for rehearing is -granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.  