In our former opinion we cited Countee v. State,119 Tex. Crim. 131, 44 S.W.2d 994, which held that certain testimony being before the jury without objection, — objection to other similar testimony later admitted, obtained by officers who had no search warrant, — would not avail the accused. Appellant vigorously complains that this holds contrary to what was said by this court in Zimmer v. State, 64 Tex. Crim. 117, and Moore v. State, 66 Tex.Crim. Rep.. We have no desire to be captious. We can not tell from the opinion in Moore's case, supra, whether or not the testimony given by Pharr without objection, was identical in part with that given by Watts over objection. We observe that the testimony was not identical in toto, and our inference is that it must have been different in substance, for the court observes that the state having introduced the testimony of Watts erroneously, the accused had the right to introduce testimony to meet it. The holding in Zimmer's case, supra, seems opposed by many opinions, both before and after its rendition, many of which were handed down with the concurrence of the illustrious member of this court who wrote in the Zimmer case. See Love v. State, 68 Tex.Crim. Rep.; Bailey v. State, 69 Tex. Crim. 474; Christie v. State, 69 Tex.Crim. Rep.; Tinker v. State, 77 Tex.Crim. Rep.; Charles v. State,85 Tex. Crim. 534; McKinney v. State, 80 Tex.Crim. Rep.. Also Wagner v. State, 53 Tex.Crim. Rep., and Rogers v. State, 26 Texas App., 404. In the opinion in the Rogers case Judge Willson says: "It is a sufficient answer to this supposed error to say that the ownership of Mary Gandy, of the house in question, is sufficiently established by other testimony adduced on the trial without objection on the part of the defendant." We note in Shepard's Texas Citations that this statement in the opinion in the Rogers case, supra, has been referred to with approval by many cases. See Koontz v. State, 92 Tex.Crim. Rep.; Windham v. State, 93 Tex. Crim. 480; Osborne v. State, *Page 296 106 Tex. Crim. 315; Biggerstaff v. State, 108 Tex.Crim. Rep.; Bryant v. State, 109 Tex.Crim. Rep.; McLaughlin v. State, 109 Tex.Crim. Rep.; Boney v. State, 110 Tex. Crim. 373; Machado v. State, 112 Tex.Crim. Rep.. We are satisfied upon mature consideration that the holding in these cases is correct.
The motion for rehearing will be overruled.
Overruled.