Appellant seriously contends that the gun should not have been admitted in evidence because not shown to have been used by appellant, and for like reason that evidence of finding the gun under the barn should have been excluded.
The gun in question belonged to the assaulted party's brother, but was at the home of his father. The father left home on Sunday between 9 and 10 o'clock, leaving the gun in the house. He returned home about sundown and the gun was gone, the west window being torn open. A witness was with appellant at the house during the time the owner was away and each of them looked through the window to ascertain whether he was at home. At that time the witness saw the gun and while he could not testify that appellant saw it, the latter had equally as good opportunity of seeing it as did the witness. Sam Jones was shot on the following Monday night shortly after dark. *Page 24 Appellant lived upon Frank Bounds' place, only about forty feet from the house occupied by Sam Jones and his wife. The officer who reached the place of the shooting within a few minutes after it occurred found the gun in question under the Bounds' barn. He testified to finding tracks at the southeast corner of the barn which went from there over the fence to the back of the barn where the gun was found. Sam Jones testified that he identified appellant as the party who fired twice at him on the night in question, and that appellant stood at the southeast corner of the barn at the time the shots were fired. The testimony makes it reasonably certain that the gun found under the barn was the one used by the party firing the shots, and that appellant was such party. This being true, it was not improper to admit the gun in evidence nor the statements of the officer as to where he found it. Neither do we think under the facts of this case there was any violation of the rule inhibiting proof of extraneous crimes in showing how the gun with which the offense was committed was obtained, although the manner of its removal from the owner's house may have indicated the commission of another offense.
In discussing bill of exception No. 3 the writer of the original opinion considered it in connection with bill of exception No. 9, evidently overlooking the fact which is now called to our attention by the motion for rehearing that the bill last mentioned was for the purpose of bringing forward an exception to the qualification placed upon bill No. 3 by the court. This being true, we must of necessity consider bill No. 3 without the qualification. C. C. P., 1925, Art. 667, R. C. S., 1925, Art. 2237, Subds. 7-9; Dowd v. State, 104 Tex. Crim. 480,284 S.W. 592; Ariola v. State, ___ Tex.Crim. Rep. ___, 289 S.W. 385; Dailey v. State, ___ Tex.Crim. Rep. ___,291 S.W. 242; Barton v. State, ___ Tex.Crim. Rep. ___,294 S.W. 1112. It is claimed that bill No. 3 reflects a comment by the court on the weight of the evidence admitted over appellant's objection. We are of opinion it does not reveal such fact. The words used in urging the objection are not stated in the bill without which the language used by the court cannot be construed as a comment on the evidence. There is a statement in the bill embraced in brackets, but we cannot regard the words in the brackets as a certificate by the court that he intended to convey an opinion regarding the evidence objected to. It appears to be the construction sought to be placed upon the court's language by appellant. We are inclined to the view that the language used by the judge indicated *Page 25 that in the court's opinion the evidence objected to was admissible.
Appellant's motion for rehearing is overruled.
Overruled.