In urging that we erred in holding the refusal of a special charge not erroneous, appellant loses sight of the fact that we have never extended the proposition embraced in said charge beyond its application to cases of theft or burglary wherein the state sought conviction relying on the circumstance of possession of recently stolen property. The special charge referred to is quoted in our original opinion. No issue as to the possession of recently stolen property was in this case. The state did not introduce such proof. The presence of the appellant at or near the house alleged to be *Page 378 the subject of his effort to commit burglary, was not alone relied on. We stated in our former opinion that according to the state's testimony appellant had a sack on the ground in front of the door on which he was kneeling while boring holes into the door of the building. He fled when the flashlight of the officer fell on him. These facts go beyond the question of mere presence. We think our former opinion correct.
The motion for rehearing will be overruled.
Overruled.