Davis v. State

Appellant was convicted of burglary, and *Page 168 his punishment assessed at confinement in the penitentiary for a term of two years, hence this appeal.

The record is without bill of exceptions. Appellant insists that the evidence is not sufficient to support the verdict and judgment. We have examined the record carefully, and, in our opinion, the testimony is ample to authorize and maintain the conviction. The fact that the evidence is circumstantial, and the main fact or circumstance against appellant being that he was found in possession of the stolen property recently after the alleged burglary, is no reason why the conviction can not be sustained. See authorities cited in White's Ann. Penal Code, sec. 1487, subdiv. 7. Nor does the fact that appellant introduced evidence showing that he was at Beaumont, and not Houston, at the time of the alleged burglary, afford sufficient reason why this case should be reversed on the facts. The jury passed upon his alibi evidence, and evidently did not believe the witnesses.

Appellant excepted to the court's charge on alibi on the ground, as he claims, that in said charge the court assumed the house had been burglarized. If this charge be considered by itself, it would be amenable to the criticism of appellant. However, the court, in another portion of the charge, required the jury to find the essential facts constituting burglary before they would be authorized to find appellant guilty. The charge complained of was merely with reference to appellant's defense of abili. It does not occur to us, under the circumstances, that the charge was calculated to injuriously affect appellant's rights. There being no error in the record, the judgment is affirmed.

Affirmed.

[Appellant's motion for rehearing was overruled without written opinion. — Reporter.]