
    OSBY v. STATE.
    (No. 6071.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1921.)
    1. Burglary <&wkey;46(3) — Evidence sufficient to support charge submitting statutory definition- of breaking.
    In a prosecution for burglary, testimony of the owner of the burglarized house that his storehouse was broken into about the 23d of March held, sufficient to support the action of the trial court in submitting to the jury the statutory definition of breaking.
    2. Burglary <&wkey;4l (6) — Evidence sufficient to sustain conviction.
    In a prosecution for burglary, evidence consisting of comparison between defendant’s tracks made after he was arrested and those found near the burglarized store held sufficient to sustain conviction.
    Appeal from District Court, Henderson County; John S.- Prince, Judge.
    
      Pleas Osby was convicted of burglary, and be appeals.
    Judgment affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for tbe State.
   LATTIMORE, J.

Appellant was convicted of burglary in tbe district court of Henderson county, and bis punishment fised at two years’ confinement in tbe penitentiary. There is no brief on file for tbe appellant.

For tbe stated reason that there was no testimony calling for same, complaint is made in motion for new trial of the action of tbe court below in submitting to tbe jury the statutory definition of “breaking.” Tbe only other contentions in this record are that the evidence fails to support the verdict or to authorize the submission of the issue of burglary to the jury. Tbe owner of the bouse alleged to have been burglarized testified that his storehouse was “broken into about tbe 23d of March,” and also testified that “they broke tbe window and entered there,” and also stated that this was in the nighttime. In our opinion, this supports tbe charge as given.

The evidence also shows that on the night said storehouse was entered a witness saw two men carrying sacks near tbe burglarized store, one of whom he testified he took to be appellant and the other a negro, William Súber. It was a rainy night. Tbe next morning tracks of two men were discovered near the window of said store and followed out to tbe neighborhood of the Súber bouse. Another witness testified that he was watching appellant and William Súber during tbe day after the burglary, and saw them go to a point near tbe Súber home where a large log was in the woods, and saw Súber pull up a sack near said log and get therefrom a pair of shoes; appellant being at that time about 15 feet from tbe point where said shoes were in said sack. After the parties had gone this witness went to said log and found there two sacks containing shoes and overalls, which he says be carried and delivered to Mr. Dickerson, tbe owner of the burglarized* promises. Mr. Dickerson testified that said witness delivered to him two sacks containing shoes and overalls, and that same was his property and was the property taken from said store on the,night of the burglary. In addition to this, the tracks of appellant, made after he was arrested, were measured and compared with the tracks found near the burglarized store the morning after said burglary, and were found to correspond. We think these facts amply justified the jury in its conclusion as to the guilt of appellant.

.Finding no error in the record, the judgment will be affirmed. 
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