
    (85 Tex. Cr. R. 239)
    MEREDITH v. STATE.
    (No. 4941.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.
    On Motion for Rehearing, April 23, 1919.)
    1. Criminal Law <&wkey;511(2) — Accomplice Testimony — Corroboration.
    The law does not require that the evidence, independently of that of an accomplice, should establish guilt, but only that there should be criminative facts proved which tend to connect accused definitely and immediately with the commission of the offense.
    2. Criminal Law <&wkey;511(l) — Accomplice Testimony— Corroboration — Sufficiency.
    In a prosecution for burglary, evidence corroborating the accomplice testimony, implicating defendant as a principal, held sufficient to support verdict of guilty.
    3. Criminal Law <&wkey;59(3) — Guilt as Prin-cipai>-Presence at Scene oe Crime.
    The mere presence of defendant at the scene of a burglary would not make him guilty as a principal.
    On Motion for Rehearing.
    4. Criminal Law <&wkey;33S(2) — Circumstantial Evibence — Attainability oe Direct Evidence,.
    Where positive and direct evidence is attainable, it is not permissible for the state to resort to circumstances to verify or prove a fact.
    5. Criminal Law <&wkey;562, 1036(1) — Appeal-Reservation oe Objections — Circumstantial Evidence.
    To invoke the rule with reference to the inadmissibility of circumstantial evidence, where positive and direct evidence is attainable, it is necessary to urge it at trial, any failure to object being a waiver; but conviction cannot stand unless the evidence is sufficient to overcome the presumption of innocence and to establish necessary facts.
    6. Burglary <&wkey;41(l) — Circumstantial Evidence— Sueeiciency.
    In a prosecution for burglary of a store, circumstantial evidence that defendant did not have the owner’s consent to enter and take the property held sufficient to support conviction.
    Appeal from District Court, Caldwell County; M. C. Jeffrey, Judge.
    Clyde Meredith was convicted of burglary, and appeals.
    Affirmed.
    
      Graves & Williamson, of Lockhart, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for the offense of burglary. It appears that Van Dusen was the owner of a country store near Lytton Springs, which was burglarized on the 29th of May, 1917. Van Dusen said that he alone attended to the store; that he closed it and fastened the doors and windows about dusk; that on the following morning he found the doors had been broken open; that he gave appellant, and no other one, consent to do so; that a number of articles, including soda water in bottles, had been taken from the store. Bottles of the same brand were two or three days later found in a field near the road, as though thrown into the field from the road. They were a half mile from the store and in the direction of Mendoza, winch was other than that which would be traveled in going to Lockhart.

George Dillard testified: That he, together with appellant and his brother, Joe Meredith, got a buggy from. Mr. Sternberg, starting on a fishing trip. That on the way they made an agreement to go into Van Dusen’s store. He said that they passed the store without stopping, because they saw a buggy coming from the opposite direction toward the store. They met the buggy, which was occupied by .Mr. Smith and Mr. Strong. After some conversation with these parties, the witness and his alleged companions and Smith drove back past the store; Strong getting out at his home on the way. After passing the store a short distance, at the fork of the road, they separated, Smith going towards his home, and the witness and his companions taking the road toward Lockhart, subsequently turning around, however, and driving back to the store. Joe Meredith, he said, went in one of the side doors, which he forced open, while appellant and the witness were watching to see if anybody came. Joe got some soda water, and then appellant went in, and he thought he got a box of candy. He (witness) did not go in the.store. That after appellant and his brother came out they showed witness soda water, candy, and sausages. They then went up the road toward Mendoza, drinking soda water and throwing the bottles out on the side of the road.

Mr. Sternberg testified that appellant and Dillard arranged with him and his brother for a. buggy, which was later turned over to them; that he did not know when they returned, but saw tire buggy back in the yard next morning. This was some 10 days before the witness heard of the burglary of Van Dusen’s store.

Smith testified that, on the night that the store was burglarized, he started for his home from Lytton Springs about 10 o’clock. Strawn was with him. They stopped at Strawn’s house, which was some 200 yards from Van Dusen’s store, between Lytton’s Springs and Van Dusen’s store. Appellant, his brother, and George Dillard came up in a buggy and had a conversation for a while, after which Strawn went into his house, and witness,' 'appellant, and his companions drove down the road, passing Van Dusen’s store; witness turning off towards his home, and the others driving on towards Lockhart. He heard of the burglary next day. The witness thought it was about 10 o’clock when they first met, and that he reached home about 10:30 o’clock. A witness for appellant testified that he met appellant and his brother and another person driving in a buggy on the night in question, about 5 or 6 miles from Van Dusen’s store in the direction of Lockhart, in which direction they were traveling. This the witness thought was about 10 o’clock. The witness was not certain this occurred on the night of the burglary. Another witness testified to the same facts. Clayton Meredith, a brother of appellant, testified that he saw appellant and his brother Joe and Dillard start out in Sternberg’s buggy about sundown. He next saw them about 11 o’clock that night when they came in; that he was positive that appellant returned at that time, but was not certain with reference to Dillard coming at that time or not; did not see him. Appellant testified that he had arranged to go to Lytton Springs, in that neighborhood, and that Dillard requested the privilege of accompanying him; that they left Lockhart about sundown in Sternberg’s buggy; that they reached the point on the edge of Bastrop county, which was his destination, about 8 or 8:30 in the evening, remaining there about 15 minuteé, and returning, overtook Smith and Strawn between Lytton Springs and Van Dusen’s store; stopped and talked with them at Strawn’s store probably a half an hour; drove in company with Smith some 700 or 800 yards from Strawn’s house, separating at the fork of the road; that he and his companions continued their trip toward Lockhart, met Mr. Ebersole and Mr. Starling on the road about 6 miles from Van Dusen’s store, reaching home about 11 o’clock. He denied any connection with, or knowledge of the burglary.

The question is: Is there sufficient, evidence corroborating the accomplice? The law does not require that the evidence, independent of that of the accomplice, should establish guilt. Nourse v. State, 2 Tex. App. 317, and other cases listed in Branch’s Ann. P. C. § 719. It requires only that there should be criminative facts proved which tend to connect the accused directly and immediately with the commission of the offense. Welden v. State, 10 Tex. App. 400 and other eases listed in Branch’s Ann. P. C. p. 368. Our statute on the subject is as follows:

“A conviction cannot be bad upon tbe testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant •with the offense committed; and the corroboration is not sufficient, if it merely shows the commission of the offense.”

On the subject we quote from Wharton, Crim. Ev. vol. 2, § 442, as follows:

“There may be many witnesses, therefore, who give testimony which agrees with that of the accomplice, but which, if it does not serve to identify the accused parties, is no corroboration of the accomplice; the real danger being that the accomplice should relate the circumstances truly, and at the same time attribute a share in the transaction to an innocent person. It may, indeed, be taken that it is almost the universal opinion that the testimony of the accomplice should be corroborated as to the person of the prisoner against whom he speaks.”

The evidence shows that the burglary was committed. The accomplice testifies that appellant participated. The evidence, independent of the accomplice, tends to show that appellant was present at the time the offense was committed, and was the companion of the accomplice before and after its commission. The accomplice and appellant started together, were seen together near the burglarized premises, and according to appellant’s own testimony remained together throughout the journey and returned together. It is true, as contended by appellant, that his mere presence would not alone make him guilty as a principal;’but, the accomplice having testified to facts showing that appellant was a principal, the other facts showing that, at the time and place the offense was committed, he was present with the accomplice we think meets the requirements of the law intending to establish his identity as one of those who committed the offense. We are therefore constrained to believe that we are not authorized to sustain appellant’s contention that the evidence fails to support the conviction.

The judgment of the lower court is therefore affirmed.

On Motion for Rehearing.

DAVIDSON, P. J.

The alleged owner testified postively that he did not give his consent to the breaking and entry of his store, but only circumstantially as to his want of consent to take tbe property after the entry. Appellant’s contention is that, where positive and direct evidence is attainable, it is not permissible for the state to resort to circumstances to verify or prove a fact. As a general proposition this is correct, and is well supported by the authorities. When that rule is invoked, it should be sustained. The authorities, however, also sustain the proposition that, in order to invoke this rule with reference to the positive and direct testimony as against circumstances, it is necessary tc urge it on the trial or at the proper time. Brown v. State, 58 Tex. Cr. R. 336, 123 S. W. 915; Schultz v. State, 20 Tex. App. 308; Williams v. State, 19 Tex. App. 276; Stewart v. State, 9 Tex. App. 321.

While it is requisite to produce the best evidence to prove a given fact, yet this may be done by the inferior testimony, if no objection is urged. Therefore the failure to urge objections to this manner of proof will be considered a waiver, and if the circumstances are sufficient to overcome the reasonable doubt and the presumption of innocence, it will be held sufficient to support the finding of the jury on that phase of the case. This is sustained by the authorities.

In the Wisdom Case, 42 Tex. Cr. R. 579, 61 S. W. 926, both rules were recognized and sustained under the circumstances* there stated. It was there held, as in many other cases, that the best evidence should be produced ; but the further rule was shown to be supported by the authorities that nonconsent in cases of fraud could be shown by circumstances. That ease is not clear as to how the question came. Whether it was raised on the trial or not, it would not be considered authority against the rule laid down in tire Brown Case and supporting cases, unless the question had been discussed and decided. When the inferior evidence is introduced without objection, a waiver will be presumed. The principle seems to run throughout our jurisprudence. Tt is often applied, even to hearsay testimony, where no objection was urged. The evidence, however, in all such cases, must be sufficient to prove the requisite facts to the exclusion of the reasonable doubt, and overcome the presumption of innocence in so far as the fact itself is concerned, and its relation to the case and to guilt. All necessary facts must be subject to that rule, and proved, whether by direct or circumstantial evidence. Such waiver applies more to the manner of proof than to its weight or cogency. Evidence proving the facts must be sufficient to legally form the basis of the judgment. The application of these rules must necessarily hinge largely upon each particular case and the relation of introduoed evidence to that case. ,

In the instant case it was testified by the owner that he did not give his consent to the breaking and entry of the store, and also as to all the attendant facts incident to the breaking, to the taking of his goods, that this occurred at night without his knowledge, and to the recovery of some of the things after the taker had used the contents. It is a circumstance, also, that consent was wanting, as shown by the attendant facts and circumstances stated by the owner and the accomplice as to the manner in which the burglary and the taking occurred. ■ The parties enter- | ed the store at night and appropriated the I goods. This is evidence of the purpose to steal, attendant upon the breaking. These facts would all exclude any purpose on the part of the burglar, except that of theft. It has been held by the authorities that, in the absence of any other intent in a burglary case, the legal presumption is that theft was intended. The text-writers and adjudicated cases are all in harmony on this proposition. Applied to this case, the facts seem sufficiently clear and strong to bring the conclusion that the accused did not have the consent of the owner to enter the house and take the property. Circumstantially this would be sufficient, and in the absence of an objection, under the cited authorities, it would be too late to raise the question after the trial.

Appellant insists the facts are not sufficient to corroborate the accomplice. The accomplice swore directly to a burglary and theft. Testing the case by omitting the testimony of the accomplice, the circumstances which tend to fasten the burglary upon defendant show that the defendant, the accomplice, and another party went from Lockhart to the store on the occasion of the burglary; that their purpose in leaving Lockhart was to go to or near the line of Bastrop county on a fishing excursion. It was at night. All the testimony Shows that after reaching the store they discovered a buggy just beyond, went to where it was, and discovered it belonged to the witness Smith. They there turned back in the opposite direction of where they started fishing, accompanied Smith some distance, and finally took leave of him. They went no farther than the point indicated in the direction of their destination for the fishing excursion. These facts show without controversy, not only by witnesses independent of the accomplice, but by defendant himself, that they did go to the store; that they were there, and around that neighborhood, for some time, and finally returned, he says, to Lockhart about 11 o’clock at night. He was in company with the accomplice and also another party named Meredith. It is an uncontroverted fact that the store was burglarized by somebody. The accomplice says he and the defendant and the other Meredith did it, and it is a conceded fact the parties were together at the store and around there; that the fishing excursion was abandoned and appellant returned to Lockhart. We are of opinion that this evidence is sufficient to corroborate the testimony of the accomplice. It would avail but little to discuss the .weight and the cogency of these facts. They unquestionably tend to show that appellant was in a position to burglarize the house, in the neighborhood, and had the opportunity, and was with the party who did the breaking, as shown by the accomplice testimony. The question here is not one of the sufficiency of the circumstances to show guilt, but their cogency tending to corroborate the accomplice testimony. Under the authorities we think this is sufficient. See Martin v. State, 21 Tex. App. 1, 17 S. W. 430; Moore v. State, 47 Tex. Cr. R. 410, 83 S. W. 1117; Nourse v. State, 2 Tex. App. 304; Byrd v. State, 49 Tex. Cr. R. 279, 93 S. W. 114; Williamson v. State, 43 S. W. 523.

We are of opinion that the motion as presented should be overruled. 
      (gssFor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     