Conviction for burglary; punishment, two years in the penitentiary.
Without question a store was burglarized and meat, lard, tobacco and other property taken therefrom during the nighttime. The testimony clearly shows that the burglary was by force applied to the building. Shortly after the date of the alleged burglary appellant sold to witness Miles some goods of the same kind and character as those taken from the alleged burglarized store. There was one particular piece of plug tobacco which had been cut by a knife while in the store, which furnished the chief means of identification of the property. We deem the evidence sufficient.
There is but one complaint of procedure. Appellant presented a special charge asking that the court instruct the jury as a matter of law that witness Miles was an accomplice. This charge was refused. We do not think any error appears in this action of the court. Miles was shown to be an employee in a pool hall in Bryan, working for one DeHart. Miles testified that appellant came down to said place one night with some tobacco of various kinds in two sacks and wanted to sell it to witness. Witness told him that he would have to refer the matter to Mr. DeHart, the owner and proprietor of the business. He testified that he saw Mr. DeHart that night and told him of the offer of the stuff by appellant, and DeHart gave him three dollars and told him to buy it if it looked like it was worth the money. He said he bought it from appellant and put it in a show case where it was found by the officers. When the officers found it Miles told them all the facts and circumstances attending the purchase as they seem to have developed in the testimony. There was no effort at concealment by him, and nothing in the record shows that he knew or had reason to know that the property was stolen. We fail to find anything in the record to suggest that the court should have told the jury as a matter of law that Miles was an accomplice.
No error appearing, the judgment will be affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.