Appellant insists the indictment is deficient, because it alleges the property taken from the alleged burglarized house was so taken with the intent to appropriate it to the use and benefit of him, the said Will Bartlett; the contention being that his name is not Bartlett but Bartley. The indictment charges that Will Bartley committed the burglary, and that the entry into the residence was with the intent of him, the said Will Bartley, fraudulently to take, steal and carry away property out of said house; the concluding sentence of the indictment being, "with intent to appropriate the same to the use and benefit of him, the said Will Bartlett." This criticism of the indictment is without merit. Where the name has been properly set out, a subsequent reference to that name using the word "said," although the name may be spelled differently in subsequent portions of the indictment, does not vitiate.
The first ground of the motion for new trial (there being no errors assigned) complains of the ruling of the court requiring the witness "J.W. Bartley to write, under the direction of the district attorney, a portion of the note introduced in evidence as having been written by *Page 42 the said J.W. Bartley on the 26th day of June, 1903, to T.H. Curry," and over appellant's objection, for the purpose of comparison. The second ground of the motion urges error because the court required the same witness to write figures on a blank sheet of paper for the purpose of comparison. Bills of exception were not reserved to this testimony, and therefore these matters will not be discussed.
The third ground of the motion attacks the sufficiency of the evidence. It is a case of circumstantial evidence. On Saturday the alleged owner, with his wife, closed his house and went to a town a few miles away, passing a neighbor's en route. Appellant and another young man stopped at this neighbor's and requested the privilege of having a ball or dancing party at his residence. Before leaving he inquired in regard to the alleged owner of the house, and was informed that he had passed this neighbor going to town. Appellant then left, going the road in the direction of his home, which led within 300 yards of the alleged burglarized house. Before leaving, the owner closed the house and latched the doors, but did not lock them. Inside the house were two kinds of cartridges, which were taken, and a blank book in which the owner kept some accounts. He returned that night, and on the following or next succeeding day, discovered the loss of his cartridges and book. The house apparently had not been opened. However, it could have been opened and the things taken and closed again without leaving any evidence of the entry so far as any damage to the building was concerned. On the day of the burglary appellant was seen with cartridges of the same size, character and make of those missed from the burglarized house. He was handling and shooting them. Shortly afterwards he disposed of the blank book, which was recovered by the owner. In other words, he was found in possession of cartridges on the day of the burglary exactly like those taken from the house, and a day or two afterwards gave away or traded the blank book the owner had in the house. Possession of recently stolen property unexplained, or explained by a statement either unreasonable or untrue, has always been held sufficient to justify a conviction for the theft of that property. If appellant committed the theft, of course it could have been done in no other way than by means of the burglary. Usually we have some tangible evidence of entry in burglary cases. Here there was none so far as injury to the building is concerned; and we are relegated to the fact of appellant's possession of the property taken from the house to ascertain the entry. As before stated, this is a case of circumstantial evidence, and in such case it has always been held that the evidence is sufficient if it excludes every reasonable hypothesis except that of guilt. Tested by that rule we believe the evidence in this case is sufficient to justify the finding that appellant was guilty of burglary. We have him in the immediate vicinity alone, traveling the road passing within 300 yards of the residence; we find him the same day exhibiting and shooting cartridges of the precise make that were in the house and taken therefrom; we find him in possession of the blank book; and that he tore certain leaves *Page 43 from the book on which certain accounts were entered, and we find him giving this book away. In fact the testimony is of sufficient cogency to justify the jury in arriving at the conclusion that appellant committed the burglary. The judgment is affirmed.
Affirmed.
ON REHEARING. November 30, 1904.