
    GROSS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.)
    Burglary (§ 41)—Evidence—Sufficiency.
    Where, on a trial for the burglary of a corncrib, the evidence showed that accused had a sack of corn a night or two after the alleged burglary, and that he had not raised any corn of his own, but the owner of the crib did not show that he owned any corn, or had any in the crib, at the time of the alleged burglary, a conviction was not sustained by the evidence.
    [Ed. Note.—For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.]
    Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.
    Henry Gross was convicted of burglary, and he appeals.
    Reversed and remanded.
    J. V. Lea, of Houston, and J. M. Hansbro, of Cold Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at three years’ confinement in the penitentiary.

The evidence discloses that the alleged owner of the house heard a noise at his crib like the rattling of a chain. He approached the house, and when in its neighborhood inquired who it was at the house. Appellant replied that it was Henry Gross. The alleged owner asked him what he was doing there. He replied that in passing he found the door of the crib open, and was closing it. They walked from there to the residence of the alleged owner, a short distance, and were together a few moments, when defendant left. A night or two subsequent to this transaction, appellant took a sack of corn from the crib of his brother-in-law. The brother-in-law testified that he had no corn in the crib, and asked appellant where he got the corn. His reply was, “By managing.” It is also shown that appellant had not raised any corn the year before. This is the substance of the testimony.

We are unwilling to permit a judgment on this character of testimony to stand. The owner of the crib did not testify that he owned any corn, or had any in the crib, at the time that appellant was found at the crib. Why such an important fact as this is not shown is not explained. The owner of the crib could have easily testified if he had corn in the crib at the time. The fact that appellant had a sack of corn a night or two afterward seems to have been regarded as an important fact; at least, it was introduced as a criminating fact against him, in connection with the further fact that appellant had not raised any corn of his own. A ease is not proved by suspicion. Lawrence, alias Chapman, v. State, 146 S. W. 928, decided at present term.

The judgment is reversed, and the cause is remanded.  