ON appellant’s motion for rehearing.
BEAUCHAMP, Judge.The very forceful argument in behalf of appellant’s motion for rehearing herein presents the contention that there is a distinguishment to be made between Rains v. State, 140 Tex. Cr. R. 548, 146 S.W. 2d 176, and the case at bar. It is said that in the Rains case the charge was murder; that the defendant plead self-defense and that his reported admission before the grand jury did not contradict his defense to the charge of murder, that is self-defense.
It appears to us that there is a similar situation in the instant case. Appellant makes no denial that he took the calves and sold them. He could admit as much without affecting his defense as indicated by his motion for a continuance and apparently relied on throughout the trial. That contention is that there is a variance between the allegation and the proof in that the cattle were not in the possession of the party alleged in the indictment, *126but that they belonged to and were in the possession of another and different person.
We see no support for his contention in the further statement that this is a circumstantial evidence case. In the first place, it is not a circumstantial evidence case because the prosecuting witness makes a direct statement that appellant admitted to him that he took the calf and sold it. Other circumstances were testified to by witnesses which corroborated this direct testimony. For this reason there is no occasion for a charge on circumstanial evidence. Even if it had been a circumstantial evidence case, the rule would be the same.
We remain of the opinion that the case was correctly decided and the motion for rehearing is overruled.