Appellant files his motion for rehearing in this case and alleges as ground therefor that there is no evidence of "breaking" into the house in question. Mr. Gallagher, the owner of the house, testified that he had moved out of this place to a new one and that a few days thereafter he was notified of the theft of property from his house, and that when he got there he found the several articles mentioned were gone. He said, "those things were in the house when I moved out of it. When I closed the place was when I left; I don't know for sure whether I later closed it again. * * * I am positive that my place was closed when I left there. The doors and windows were closed. * * * This was the following Monday after my attention was called to the fact that my place was entered."
The evidence shows that the house was closed and that the *Page 417 things were taken out between the visits of the owner to it without his consent. How is it possible for that to have been done without a breaking into the house by someone? Appellant was found in possession of the goods.
We recognize the doctrine laid down in Tex. Jur. Vol. 7, page 852, to the effect that mere possession of goods recently stolen, "without evidence of a breaking of the house", would be insufficient to prove the essentials of the allegation in this case, but we think the foregoing evidence of Mr. Gallagher meets the requirements of Strickland v. State, 78 S.W. 689, in which Judge Davidson used the following language:
"It has been held that possession of recently stolen property taken from the burglarized house is a sufficient predicate to justify a conviction for burglary, but in all those cases, so far as we are aware, an entrance to the house by somebody was anecessary condition as a predicate for the burglary conviction. The mere possession of recently stolen property, without evidence of a breaking, is not sufficient to show a burglary. If the breaking is proved, and the party is recently thereafter found in possession of the property taken from the house, it would perhaps be sufficient to justify the conviction for the burglary; * * *."
It was concluded in that case that the evidence was insufficient to show a break by Strickland, but this is based on the fact that appellant was in the house at the time the stolen property was placed in a trunk and he had the opportunity to take it while he was in the house lawfully. We find no trouble in distinguishing that case from the case at bar.
The motion for rehearing is overruled.