dissenting on Motion for Rehearing.
The opinion on rehearing joins in the view that the majority holding in Alexander v. State, 164 Texas Cr. Rep. 663, 302 S.W. 2d 414, requires a finding that the evidence herein is insufficient to sustain the conviction. The original opinion thus becomes the minority views, as were my views in the Alexander case.
It is true that the eye-witness to the burglary in the Alexander case came nearer identifying Alexander than Mrs. Nick-erson came to identifying appellant. What the majority overlooks is that neither identification was positive, and for that reason both cases were submitted to the jury as on circumstantial evidence.' Had the identification been sufficient in either that case would not have been a stronger circumstantial evidence case, but a case of direct evidence the sufficiency of which-could hardly be questioned.
I remain ■ convinced that the circumstantial evidence was sufficient in the Alexander case. If not, it does not follow that this case should be reversed.
I call attention to the fact that in the Alexander case there was no evidence that the automobile in which the three burglars came to the burglarized premise's, and in which they left after burglarizing it, belonged to the defendant on trial. There was no evidence that Alexander drove or had any control over the car. There was nothing to show that property taken in the burglary or tools with which entry was gained were found in the automobile.
All of these facts are shown in this record and clearly distinguish this case from the Alexander case.