Appellant bases the motion upon the proposition that the officer who testified to facts showing "probable cause" for the search was an "interested witness," and therefore the court should have left it to the jury under proper instructions to determine whether probable cause existed. It was stated in the original opinion that the facts testified to by the officer were in no way controverted. No facts were in evidence which in any way questioned the motives or acts of the officer, or which raise any issue as to the existence of the facts stated by him. In such case the question of probable cause was one of law for the court. In addition to the authorities cited in the original opinion see Gordon v. State, (No. 12,104, motion for rehearing overruled January 23, 1929). There is nothing in the record suggesting that the officer was an "interested witness" in the sense claimed by appellant. The only interest discoverable from the record was that of an officer interested in the discharge of his duties in an effort to enforce the law.
The motion for rehearing is overruled.
Overruled. *Page 249