The defendant was indicted for the offense of “ burglary,” and on the trial therefor was found guilty of burglary in the day time. A motion was made for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendant excepted.
1. There were two counts in the indictment, in one of which the.defendant was charged with the offense of burglary in the night-time, and in the other he was charged with the offense of burglary in the day-time. It was insisted on the argument for the plaintiff in error that the evidence did not show whether the offense was committed in the day or night time, and therefore the verdict was wrong. There is sufficient evidence in the record that a burglary was committed, but, from that evidence, it is somewhat doubtful whether the offense was committed in the day or night, and the jury gave the defendant the benefit of the doubt by finding him guilty of the lesser grade of the offense.
2. The fact that some of the articles in the house which was broken open and entered were soon thereafter' found in the defendant’s possession, and of which possession he failed to give a satisfactory account, together with the other circumstances detailed in the evidence, was sufficient, in our judgment, to support the verdict of the jury; and, as the presiding judge was satisfied with it, we will not interfere.
Let the judgment of the court below be affirmed.