In the motion for rehearing by the state complaint is made of the following part of the original opinion.
"This bill of exception, as presented, is insufficient to apprise this court as to whether or not the barn where most of the articles mentioned were seized was used in such connection with the private residence of the appellant as to bring it under Art. 691, P. C., which states in part:
" 'No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding-house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms of this Act.'
"However, it is unnecessary to discuss the point in view of the disposition we have made of the case, but if the testimony upon another trial should show that this evidence falls within the terms of the above article, then the affidavit for search warrant, to be sufficient, would have to be made and signed by two credible persons. Heitman v. State, 290 S.W. 768."
We are constrained to agree with the state in its contention that this part of our original opinion was erroneous. The search warrant obtained and executed in the instant case was for the purpose of discovering and seizing alleged stolen property. We are of opinion that the terms of Art. 691, 1925 P. C., relate only to search warrants when the purpose of same is to discover and seize intoxicating liquors, or something pertaining to a violation of the liquor laws.
It is further insisted by the state that we were in error in holding inadmissible the testimony relating to the finding upon appellant's premises of a clock and of a quantity of coins which had been taken from places other than that involved in the robbery charged in the instant case, and at times rather widely separated from that of the instant robbery. We are not able to agree with the state's contention in this regard. Webb v. State, 8 Tex.Crim. App. 115; Hardin v. State, 8 Tex.Crim. App. 653; Fielder v. State, 40 Tex.Crim. Rep., and Waters v. State, 94 S.W. 1038, are cited by the state as upholding the proposition that contemporaneous possession of other stolen property beside that described in the indictment, is a circumstance provable by the prosecution for the purpose of strengthening the inculpatory inference invoked from his possession of the alleged stolen property *Page 275 involved in the particular case. It will be found that this principle appears to be a quotation from the syllabus of the opinion in the Webb case, supra. Full reading of the opinion shows said statement to be only partially true, as resting upon said holding. Testimony was admitted in said case of the contemporaneous possession by the accused of certain alleged stolen horses, as therein stated, "on the ground that the supposed theft in Lamar County and that committed in Ellis County were parts of one transaction." Later in said opinion it is stated that it developed that the thefts were not parts of one transaction, but two separate transactions, and therefore the testimony of a different transaction than the one charged in the indictment, should have been excluded from the jury. We think each of the cases cited in the State's motion easily differentiated from the principle here contended for. Except for expressions not well founded in some isolated cases the rule stated by Judge Willson in Williams v. State, 24 Tex.Crim. App. 417, seems uniformly adhered to. Judge Willson says as follows:
"For the purpose of establishing identity in developing the res gestae, or to prove guilt by circumstances connected with the theft, or to show the intent with which the accused acted with respect to the property for which he is on trial, it is competent for the State to prove the theft of other property at the same time and place of the theft of the property in question. 'Willson's Tex.Crim. Laws, Sec. 1295.) But evidence of distinct thefts committed at other times and places than the theft in question is not relevant and is inadmissible. Such evidence does not serve legitimately to throw any light upon the particular theft for which the defendant is on trial. (Gilbraith v. The State, 41 Tex. 567; Ivey v. The State,43 Tex. 425; Kelley v. The State, 18 Tex. Ct. App. 262; Alexander v. The State, 21 Tex. Ct. App. 406.)"
As supporting this rule see Conley v. State, 21 Tex.Crim. App. 495; Musgrave v. State, 28 Tex.Crim. App. 57; Crass v. State, 30 Tex.Crim. App. 482; Welhousen v. State, 30 Tex.Crim. App. 626; Nixon v. State, 31 Tex.Crim. Rep.; Schwen v. State, 37 Tex.Crim. Rep.. In the language of many authorities it would seem unquestionably true that to prove against one on trial for the commission of a crime, either by circumstances or by direct testimony, that he had on different and separate occasions committed crimes similar, would be to convince the jury in the particular case that he is a criminal generally, but unless the matter pertaining to the extraneous crime be a circumstance material in itself to the making out of the particular case, in *Page 276 which event it would be admissible regardless of whether it established an extraneous offense or not, such testimony should not be admitted.
The State also insists that the charge was not wrong in which the learned trial judge attempted to limit the purpose for which evidence of extraneous offenses was admitted. The charge is set out in the original opinion, and in same the court told the jury pointedly that they could only consider such evidence of extraneous offenses for the purpose of aiding them, if it does aid them, in determining whether or not defendant is guilty of the charge alleged against him in the indictment in this case. A charge in almost the same language was condemned in Denton v. State, 42 Tex.Crim. Rep..
The State's motion for rehearing is granted to the extent of holding incorrect that part of the original opinion above quoted, but by reason of the other errors rendering necessary a reversal of the case, the motion for rehearing is overruled.
Overruled.