Conviction for burglary, punishment five years in the penitentiary.
The charge against appellant was the burglary of a private residence. The testimony seems sufficient to show that a private residence was entered by force by the appellant and certain money taken therefrom. Appellant admitted to the owner of the premises that he had gone into the house and taken the money. This was testified to. The only bill of exceptions appearing in the record was taken to the charge of the court for its failure to submit to the jury the law of circumstantial evidence. Appellant admitted to two men who so testified, that he had opened the door of the house and gone into it and taken therefrom property. He testified on the stand on this trial that he did enter the house without the consent of the owner and take therefrom property. The contention made is that the state alleged burglary of a private residence by an entry at night, but that the fact of an entry at night was only shown circumstantially, and that the state met its burden of showing that such night entry was made, only by circumstances, and that hence an instruction on the law of circumstantial evidence was necessary. We are unable to agree with this proposition. On page 1294 of his Ann. P. C., Mr. Branch cites a number of authorities holding that when the breaking and entry of a building are shown by positive testimony, there need be no charge on circumstantial evidence. The rules relating to circumstantial evidence are of judicial construction. Numberless authorities are cited in the books which hold that unless the case is wholly one of circumstantial evidence, it is not dependent upon that character of testimony and it would not be error for the court to refuse to so charge. An inspection of this record shows that the case is not one wholly dependent upon circumstantial evidence.
Being unable to agree with appellant's contention, the judgment will be affirmed.
Affirmed.