The offense is theft. The punishment is confinement in the State Penitentiary for a term of ten years.
On original submission, we affirmed this cause. Appellant, in an able motion for rehearing, strenuously insists that we erred in our original opinion in holding the evidence sufficient to sustain his conviction. A more careful review of the record in the light of his motion leads us to the conclusion that his contention is well-founded. Therefore the original opinion will be withdrawn and this opinion substituted therefor.
The testimony in this case is similar in every material respect to the testimony in the case of McCauley v. State, No. 19723 [page 256 of this volume], this day decided, where the material facts are fully set out and discussed. Both prosecutions arose out of the same transaction. We held the circumstantial evidence in that case insufficient to show beyond a reasonable doubt appellant's guilt of the offense of burglary.
For the reasons there assigned, the judgment of the trial court is reversed and the cause remanded. *Page 260
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.