The complaint stressed in appellant's motion, of a misstatement in our opinion of the length of time the owner of the alleged burglarized house was absent therefrom, seems immaterial.
Appellant again urges the insufficiency of the testimony. He and Houston were observed by officers on a street in Gladewater, Texas, about 12 o'clock at night acting suspiciously. When they came to where there was a light on the street they crossed over and went around the light. The officers arrested them. Appellant was in possession of some articles of clothing and a number of pennies. On this trial Mr. Van Cleave identified the various articles of clothing found in possession of appellant, and said that a number of pennies were taken from his home on the night of the burglary. Appellant's main contention in his motion seems to be that the proof does not show that the house was recently burglarized, and therefore the property found in his possession was not the fruits of a recent theft. The officer testified that the next morning after finding appellant and his companion in possession of the property referred to, they learned of the burglary, and went to the house of Mr. Van Cleave and examined the house and premises. They testified as follows: "There were tracks around the front door and leading around to the screen on the west side of the house. The screen was torn loose, and the house had been entered on the west side. On the inside we found fresh struck matches. The house had been closed and there was dust on the floor and fresh tracks showing in the dust." Another witness testified that he went to the house on the day following the arrest of appellant and that there was fresh mud or dirt inside and matches were struck all around over the house. Mr. Leak, father-in-law of Mr. Van Cleave, testified that he went to the police station "Soon after his house was burglarized, to examine some articles of clothing that he owned." He said at the police station he saw Van Cleave's watch, a pair of boots, a suit of clothes and other articles. We are not able to agree with the urgent contention made in appellant's motion. We think the testimony as to what appellant's companion had in his possession, which came out of said burglarized house, was admissible in testimony. We think the testimony sufficient to show that the entry into the house was recent, and that appellant's possession of the alleged stolen property was recent, and there are decisions without number in this state holding that one found in possession of recently stolen property, and his possession not satisfactorily explained, may be held guilty of theft. We find no exceptions to the court's *Page 565 charge. Appellant asked a special charge, in substance, that if the jury believed, or had a reasonable doubt thereof, that appellant purchased the clothing which were exhibited in evidence as having been found in his possession, they should find him not guilty. This presented appellant's affirmative defense.
Not being able to agree with appellant's contention, the motion for rehearing will be overruled.
Overruled.