Referring to the case of Howell v. State, 109 Tex. Crim. 42,2 S.W.2d 861, and various others, it is insisted that the case is not one of circumstantial evidence. In the Howell case, supra, it proved that the house was entered by force. The state relied upon declarations and other evidence to connect the appellant with the breaking. Moreover, the ruling upon the original hearing to the effect that a charge on circumstantial evidence was not required was set aside and the case reversed upon motion for rehearing.
We have given consideration to the arguments and other authorities cited by the state, through its counsel, but remain of the opinion that in the present case the state relied upon circumstantial evidence alone and *Page 47 that the law demanded an instruction to that effect. The refusal of the court, upon proper objection, to give the instruction, is error demanding a reversal.
The motion is overruled.
Overruled.
ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.