The conviction is for burglary. The punishment assessed is confinement in the State penitentiary for a term of twelve years.
The only question presented for review is the sufficiency of the evidence to justify and sustain the conviction. The State’s testimony, briefly stated, shows that appellant was an ex-convict; that he had been released from the State penitentiary just a few days prior to the commission of the alleged offense. On the night of June 3, 1939, the warehouse of the Texas Company, located near the railroad tracks in the town of Conroe, in which warehouse petroleum products were stored, was burglarized; that C. C. Watson was its agent at the time and was in charge thereof. Other warehouses and buildings were located at the railroad tracks and near the building in question. The window of the warehouse was raised and an entrance to the building had been made through the window. There was also some evidence that an attempt had been made to enter the building' by prizing open the door to the office of said building, but without success.
Floyd Cox, a night-watchman, testified that while on an
Mr. Wagers, testified that about 2:00 a. m. on the day in question, he saw two men walking across the track about five minutes (and not over ten) before Cox showed up at the comer of the old bank building with the appellant under arrest.
Nothing was missed from the warehouse except a fountain pen, but this was not found on the appellant, in the building, or anywhere near or under the warehouse. No tools or implements were found with which the door of the building was attempted to be opened by force.
Appellant was released on bond but failed to appear at the next term of court and his bond was forfeited. He was subsequently arrested in California and brought back to Conroe. Being unable to obtain the services of counsel, he defended himself when his case was called for trial. He did not testify or offer any affirmative defense.
In this case the State relied entirely upon circumstantial evidence for a conviction; and the court, in his charge, instructed the jury relative thereto. However, to sustain a conviction for the offense of burglary based- on circumstantial evidence, it
Having reached the conclusion that the evidence is not sufficient to sustain the conviction, the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.