Appellant was tried and convicted in the District Court of San Saba County for the offense of burglary and his punishment assessed at two years in the penitentiary.
The record is before us without any bills of exceptions, and the only question raised by appellant in his brief is the insufficiency of the evidence to sustain the conviction. The State relied upon the testimony of the night watchman, Lewis, for a conviction, who testified positively upon the trial to the identity of the appellant and one Crowley being at or near the scene of the alleged burglary with each a sack of pecans on their shoulders, which the State contended had been taken from the store of McConnell Sons by said parties. The appellant did not testify but proved by several witnesses that said witness Lewis told them he did not know who the parties were that he saw and shot at, at the place and the time in question. All of this he denied. Witness Carroll testified Lewis told him the next morning that it was defendant and Crowley he found behind the warehouse.
It is also contended by appellant that the State failed to show an entry by force. Said witness Lewis, after describing how the door was fastened with hook and chain, stated, "so the door could not be slipped either way except by pulling out at the bottom * * *. The place of entrance to the building was through this opening at the bottom of this door, and the door was open in this manner, and I pulled it back in place." This evidence was admitted without objection or showing as to whether the witness knew how the entrance was made or was giving his opinion; however, as presented, it is binding on this court after the jury passed upon it.
The witness J. P. McConnell testified that "This warehouse was closed in front; the front door was locked, and the back door of the building was locked with a catch on each end of the door; * * * the warehouse had windows, but they were fastened up and were not used."
J. T. McConnell testified that when Lewis notified him of the alleged burglary that he immediately went down town to his store and found the pecans near the building on the outside, and that next morning after opening up the store he found "these pecans were missing" and went into detail showing how the pecans had been arranged in sacks prior thereto. All of these matters were properly left to the jury, and they found against appellant's contention in this case, which is binding on this court. After a careful consideration of the record we are *Page 180 forced to the conclusion that the judgment should be and the same is hereby ordered affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.
ON MOTION FOR REHEARING.