
    Duane Smith v. The State.
    No. 21840.
    Delivered January 14, 1942.
    The opinion states the case.
    
      Ivan Irwin, of Dallas, for appellant.
    
      Spurgeon E. Bell, State’s Attorney, of Austin, for the State.
   KRUEGER, Judge.

The offense is burglary. The punishment assessed is confinement in the State penitentiary for a term of two years!

The only question presented for review is the sufficiency of the evidence to justify and sustain the conviction.

The record shows that about 3:00 A. M. on September 6, 1941, some one, by force, entered the building of the Dairy land Polar Ice Company of which W. A. Moore was in charge and took therefrom the “cash register drawer” containing $200.00. Mr. and Mrs. J. C. Hough, who lived just across the street from that place of business, were awakened by a noise which sounded like some one beating on iron. They raised up in bed and looked in the direction from which the noise came. They saw a boy dressed in white clothes come out of the ice house and close the door behind him. This boy then walked down the street toward the park at the Colonial School. In a very short time this same boy dressed in white clothes came back. He was accompanied by two boys, one of whom was the appellant. One of the boys came to the sidewalk near the home of the witnesses; stood there and kept watch while appellant and the other boy entered the burglarized premises. They came out with what appeared to be a box about the size of a drawer of a cash register and went toward the park. The boy who stood on the sidewalk near the home of the witnesses then started' in the direction of the park. The witnesses had seen appellant frequently in the past two years pass their home, knew him and were positive that he was one of the boys who entered the building at the time in question.

Appellant did not testify or offer any defense.

It is obvious that the evidence is sufficient to sustain the conviction. The judgment of the trial court is therefore affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  