Davis v. State , 107 Tex. Crim. 134 ( 1927 )

Appellant earnestly insists that this is a case of circumstantial evidence, admitting that if the case is not wholly dependent upon evidence of that character, then it was not necessary for the court to charge thereon. Looking to the statement of facts we find proof of appellant's admissions that he broke and entered the private residence in question. This was direct evidence. In Beason v. State, 43 Tex. Crim. 442, this court states that the factum probandum in a burglary case is the breaking and entry. In Winn v. State,198 S.W. 966, opinion by Judge Davidson, appears the following: "If in appellant's confession he had directly stated that he broke and entered the house, the trial court would have been correct in refusing to charge on circumstantial evidence." In Owen v. State, 245 S.W. 704, the accused was charged with killing deceased by beating him with a gun and a singletree. On the trial appellant admitted having killed deceased by beating him. We held it not necessary to charge on circumstantial evidence, even though the accused did not admit beating the deceased with a singletree. In the instant case it is plain that the state had direct testimony of the breaking and entry of the house, these being facts necessary to be proven in order to make out the case.

There was but one other question necessary of proof in a case of burglary of a private residence, viz.: was the entry at night? In Buntain v. State, 15 Tex.Crim. App. 520, Judge White said:

"If a court were required to charge the law of circumstantial evidence in all cases where reliance was had upon circumstances to establish any particular fact, then indeed there would be but few if any cases in which such a charge would not be required. But such is not the rule. A charge upon circumstantial evidence is only required when the evidence of the main facts essential to guilt is purely and entirely circumstantial."

In Glover v. State, 46 S.W. 824, Judge Davidson, speaking for the court, says:

"The court did not err in failing to charge the law applicable to circumstantial evidence. Before a charge on this phase of the law is required, the case must be one wholly of circumstantial evidence. Appellant's confessions were introduced in evidence."

A case may be said to be on circumstantial evidence when all those facts necessary to make out a case under the law are deducible as inferences from proof of other facts. It cannot be said when there is direct proof of most of the main facts showing guilt, that because the state must prove some one or more facts by circumstantial evidence that the case is nevertheless one dependent wholly on that character of testimony so as to make it the duty of the court to so charge the jury.

Being unable to agree with appellant, the motion for rehearing is overruled.

Overruled.