The alleged owner testified positively that he did not give his consent to the breaking and entry of his store, but only circumstantially as to his want of consent to take the property after the entry. Appellant's contention is that where positive and direct evidence is attainable it is not permissible for the State to resort to circumstances to verify or prove a fact. As a general proposition this is correct, and is well supported by the authorities. When that rule is invoked it should be sustained. The authorities, however, also sustain the proposition that in order to invoke this rule with reference to the positive and direct testimony as against circumstances, it is necessary to urge it on the trial or at the proper time. Brown v. State,58 Tex. Crim. 336; Schultz v. State, 20 Texas Crim. App., 308; Williams v. State, 19 Texas Crim. App., 276; Stewart v. State, 9 Texas Crim. App., 321.
While it is requisite to produce the best evidence to prove a given fact, yet this may be done by the inferior testimony if no objection is urged. Therefore, the failure to urge objections to this manner of proof will be considered a waiver, and if the circumstances are sufficient to overcome the reasonable doubt and the presumption of innocence, it will be held sufficient to support the finding of the jury on that phase of the case. This is sustained by the authorities.
In the Wisdom case, 42 Tex.Crim. Rep., both rules were recognized and sustained under the circumstances there stated. It was there held, as in many other cases, that the best evidence should be produced, but the further rule was shown to be supported by the authorities, that non-consent in cases of fraud could be shown by circumstances. That case is not clear as to how the question came. Whether it was raised on the trial or not, it would not be considered authority against the rule laid down in the Brown case and supporting cases unless the question had been discussed and decided. When the inferior evidence is introduced without objection, a waiver will be presumed. The principle seems to run throughout our jurisprudence. It is often applied even to hearsay testimony where no objection was urged. The evidence, however, in all such cases must be sufficient to prove the requisite facts to the exclusion of the reasonable doubt and overcome the presumption of innocence in so far as the fact itself is concerned, and its relation to the case and to guilt. All necessary facts must be subject to that rule, and proved whether by direct or circumstantial evidence. Such waiver applies more to the manner of proof than to its weight or cogency. Evidence proving the facts must be sufficient to legally form the basis of the judgment. The application of these rules must necessarily hinge largely upon each particular case and the relation of introduced evidence to that case. *Page 244
In the instant case it was testified by the owner that he did not give his consent to the breaking and entry of the store, and also to all the attendant facts incident to the breaking, to the taking of his goods, that this occurred at night without his knowledge, to the recovery of some of the things after the taker had used the contents. It is a circumstance also that consent was wanting as shown by the attendant facts and circumstance stated by the owner and the accomplice as to the manner in which the burglary and the taking occurred. The parties entered the store at night, appropriated the goods. This is evidence of the purpose to steal attendant upon the breaking. These facts would all exclude any purpose on the part of the burglar except that of theft. It has been held by the authorities that in the absence of any other intent in a burglary case, the legal presumption is that theft was intended. The text-writers and adjudicated cases are all in harmony on this proposition. Applied to this case, the facts seem sufficiently clear and strong to bring the conclusion that the accused did not have the consent of the owner to enter the house and take the property. Circumstantially this would be sufficient, and in the absence of an objection, under the cited authorities, it would be too late to raise the question after the trial.
Appellant insists the facts are not sufficient to corroborate the accomplice. The accomplice swore directly to a burglary and theft. Testing the case by omitting the testimony of the accomplice, the circumstances which tend to fasten the burglary upon defendant show that the defendant, the accomplice and another party went from Lockhart to the store on the occasion of the burglary. That their purpose in leaving Lockhart was to go to or near the line of Bastrop county on a fishing excursion. It was at night. All the testimony shows that after reaching the store they discovered a buggy just beyond, went to where it was, and discovered it belonged to the witness Smith. They there turned back in the opposite direction of where they started fishing, accompanied Smith some distance, and finally took leave of him. They went no farther than the point indicated in the direction of their destination for the fishing excursion. These facts show without controversy not only by witnesses independent of the accomplice, but by defendant himself that they did go to the store; that they were there, and around that neighborhood for some time, and finally returned, he says, to Lockhart about 11 o'clock at night. He was in company with the accomplice and also another party named Meredith. It is an uncontroverted fact that the store was burglarized by somebody. The accomplice says he and the defendant and the other Meredith did it, and it is a conceded fact the parties were together at the store and around there; that the fishing excursion was abandoned and appellant returned to Lockhart. We are of opinion that this evidence is sufficient to corroborate the testimony of the accomplice. It would avail but little to discuss the *Page 245 weight and the congency of these facts. They unquestionably tend to show that appellant was in a position to burglarize the house, in the neighborhood, and had the opportunity, and was with the party who did the breaking as shown by the accomplice testimony. The question here is not one of the sufficiency of the circumstances to show guilt, but their cogency tending to corroborate the accomplice testimony. Under the authorities we think this is sufficient. See Martin v. State, 21 Texas Crim. App., 1; Moore v. State, 47 Tex.Crim. Rep.; Nourse v. State, 2 Texas Crim. App., 304; Byrd v. State, 49 Tex. Crim. 279; Williams v. State, 43 S.W. Rep, 518.
We are of opinion that the motion as presented should be overruled.
Overruled.