Appellant moves for a rehearing upon two grounds, first, that we were wrong in holding the proof sufficient to show the time of the alleged taking to be within the period of limitation; second, that no proof was made of the hauling of cotton seed by appellant on the night of the theft.
Murphy, the owner of the burglarized barn, testified to where he lived on January 22, 1935, and that some one broke into his barn on the night of the 21st or early morning of *Page 69 the 22nd, and that he saw appellant driving a car on or about January 22nd, having on same casings whose tread he identified with tracks near his barn. He detailed what he saw as to car tracks and human tracks, and said that all this happened on the night of January 21st or the early morning of the 22nd. Deputy Sheriff Clifton swore to going out to Murphy's on January 22, 1935, to investigate the loss of cotton seed, and to what he found out there. Mr. Andrews testified that about eight o'clock a. m., January 22, 1935, he saw appellant with cotton seed in his car. Mr. Johnson testified to the same thing. A banker who issued a check on January 22, 1935, identified the check which was in evidence, and was payable to John Green, and in payment of 940 pounds of cotton seed. Two witnesses who saw said check testified that the name of John Green was endorsed thereon in appellant's handwriting. We cannot agree with appellant that this does not sufficiently fix the date.
We have carefully reviewed the record, and are fully satisfied that the testimony sufficiently showed that human tracks corresponding with those of appellant, and car tracks corresponding with those made by his car, were in the immediate vicinity of the alleged burglarized barn on the night it was broken and entered and cotton seed taken out of same; also that early the next morning appellant, with approximately the quantity of seed lost, was in his car with the seed which was sold and for which a check was given payable to John Green, which name was endorsed on the back of the check by appellant.
Being unable to agree with appellant's contentions, the motion for rehearing is overruled.
Overruled.