In his motion for rehearing, appellant asserts that this court, in affirming the judgment of this case, erred in two particulars: *Page 213 First, in failing to sustain his objection to the court's charge on the ground that the court failed to instruct the jury on the law of circumstantial evidence; and second, because we held the evidence sufficient to sustain the judgment of conviction.
Trial court's are only required to charge on the law of circumstantial evidence when the State's case rests entirely upon circumstances to establish the guilt of the accused. See Atkinson v. State, 34 Tex.Crim. R.; Egbert v. State,76 Tex. Crim. 663; Branch's Ann. Tex. P. C., p. 1039, sec. 1874; 24 Tex. Jur. p. 586, sec. 101.
In the instant case, there was direct and positive testimony that Miller was in Liberty Hill on the night of the burglary. Hence, the State did not rely upon circumstantial evidence to show that Reese committed perjury when he testified that Miller was in Houston at the time in question. Of course, the State relied upon circumstantial evidence to corroborate the witness Allman, who testified that he saw Miller in Liberty Hill at the time of the burglary, but this did not require a charge on circumstantial evidence because the State's case did not rest entirely upon circumstances to establish appellant's guilt.
The second contention that the evidence is insufficient to sustain appellant's conviction was carefully considered by this court before writing the opinion of affirmance. However, we have again examined the statement of facts and remain of the opinion heretofore expressed by us.
The motion for rehearing is overruled.
The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.