Appellant was convicted of burglary, his punishment being assessed at two years confinement in the penitentiary.
The motion for new trial alleges as one of its grounds that appellant could prove by his mother that the shirt worn by appellant and identified as taken from the burglarized house had been used by him prior to the commission of the alleged burglary. There is no affidavit of the mother to that fact, nor is it shown that it was newly discovered testimony. It is simply made a ground of the motion for new trial. As thus presented, it does not come within the rule laid down for granting *Page 48 new trial to secure this character of testimony. He must have known long before the trial the facts set up, and if true could have been shown by his mother.
The remaining ground of the motion alleges the insufficiency of the evidence. There is no direct proof that appellant broke and entered the alleged burglarized house. There is positive evidence of the fact that somebody did and carried away quite a lot of property. Appellant was found in possession of some of the stolen property, which was identified by the alleged owners as being property taken from the burglarized house. Under the circumstances we are of the opinion that the evidence, though circumstantial, is sufficient to justify the verdict of the jury. Appellant was wearing a shirt subsequent to the burglary, which was identified by the parties as having come out of their house. At the place where appellant resided, being his father's residence, there was quite a lot of this stolen property found. The brother and father of the defendant were placed upon the stand and denied having anything to do with the property, or knowledge of its being there. It was secreted in the upper part or what the witnesses called the "loft" of the house. This property was identified as coming from the burglarized house. Flight was shown and appellant arrested on the train leaving the county, and denied his name and identity. These are some of the circumstances of the case. As before stated, although the evidence was circumstantial, we think it fully meets the requirements of the law in cases of this character.
The judgment is affirmed.
Affirmed.
ON REHEARING. October 24, 1914.