OPINION ON PETITION TO REHEAR
W. M. LEECH, Special Justice.We are petitioned to reexamine our ruling that both defendants were properly convicted of third degree burglary and possession of burglarious instruments.
In the course of reaching our decision we considered the arguments and authority now presented to us and this petition raises no new question. Our holding in the instant case simply stated is that under the unique set of facts presented therein that both convictions could stand. We reached this decision because the “same transaction” or “same episode” test is not the law in this jurisdiction. Rather, the test is whether the same evidence is necessary to prove both offenses. Herein the same evidence was not necessary, therefore, when directed to the identity of the offense, it is clear that the trial court was not in error. See, e. g., Harris v. State, 206 Tenn. 276, 332 S.W.2d 675 (1960); Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959).
The petition to rehear is denied.