In his motion for rehearing appellant requests that this court express an opinion with reference to the admissibility of the evidence which appears in his bill of exception No. 1. From that bill it is apparent that a deputy sheriff in Runnels County, who arrested the appellant at a point about five miles from Ballinger at about midnight, testified that on the following morning he found some bolt cutters and an emergency coil. They were not found in the car of which appellant was in possession. Appellant was not present when the articles mentioned were found. The arrest was made before daylight. After daylight the officer returned to the place at which the arrest was made and found the articles. The officer admitted that he never saw the articles in the possession of the appellant at any time. However, he stated: "I am going to tell the jury that it was his." The officer was also asked: "Q. What else did you get at that time that belonged to this defendant? A. I got some bolt cutters and emergency coil."
The injured party testified that his car was stolen at night and that it appeared that in opening the door of his garage a bolt cutter had been used.
As the bill of exception is presented, the statement of theofficer that the property belonged to the appellant seems tohave been a mere conclusion or opinion of the witness. Whether the finding of the articles would be admissible would be difficult for this court to determine from the bill of exception. The evidence as to their locality and the surroundings generally is quite meagre. Manifestly, if the bolt cutter was found under circumstances from which it might be reasonably inferred that it had been in the possession of the appellant, the finding of it might *Page 417 be admissible as a circumstance against the accused. Thestatement of the officer that it belonged to the appellantwould not be admissible against the accused. In the condition of the record, this court could not make any authoritative statement with reference to the admissibility of the finding of the articles. That is a matter which would be referable to the judgment of the trial judge in the event the question arose upon another trial. The bill is not artfully drawn and does not segregate the objectionable opinion of the officer from the finding of the stolen articles. As an examination of the matter will be more comprehensive upon another trial, we feel unable and unwilling to be more definite touching the subject matter.
The motion for rehearing is overruled.
Overruled.