Counsel for appellant have filed in this case a motion for rehearing which is based solely on the ground that the evidence is insufficient to support the verdict and judgment of conviction. This motion is sought to be sustained by an admirable argument in which the authorities are fully and fairly reviewed. While appellant's position is strongly put and the argument in its support quite plausible, we think, on a fair review of all the testimony, that it can not be said that our original opinion was incorrect. There has been some uncertainty and probably some obscurity in the decisions of this court both as to the admissibility and probative force of tracks where they are sought to be introduced as evidence of guilt. The case most relied upon by appellant is that of Mosely v. State, 67 S.W. Rep., 103. That was a murder case and the question there considered was the admissibility of the evidence of one McMeans. He was permitted to testify that in his judgment Moseley's foot was of the *Page 94 size to have made the track which he saw at the end of the cane patch at Louis Swanson's home. This testimony was objected to because, first, it was a mere opinion of the witness; and, second, because an expert opinion, were it admissible at all, would be admissible in a case where the witness had measured the track and then actually measured the foot of the defendant. In passing upon this question the court say: "In this case there is no suggestion of any measurement or comparison of the tracks found near the place of the homicide with those of the accused. The witness had seen the tracks near the place of the homicide, and then saw the foot of the accused at the trial, and from this merely he was permitted to state his opinion as to the identity of the tracks. We do not believe this should have been permitted." Now, in the case at bar the witness did not give anyopinion as to the tracks at all. He simply stated the size of the tracks; that they were made by a barefoot; that this track was about the size of appellant's foot. Appellant was shown, when seen soon after the hog was found, to be barefooted. It was shown that he habitually went barefoot, and that he was the only grown man in that neighborhood who did go barefoot. The case of Walker v. State, 81 S.W. Rep., 716, seems also much to be relied upon by appellant. In that case the question of tracks seems not to have figured at all. It appeared there that the hogs alleged to have been stolen were found in a sack which had previously contained cottonseed meal, and that this sack was found at the back end of an old house on the river bank. The evidence showed that the next day appellant was found with cottonseed meal on his clothing, and during the night had been seen to cross a bridge by two witnesses, and it appears that this testimony did not place him in any position by which he could have taken the hogs, but that their testimony rather excludes the idea that he went to where the hogs were taken. The case also shows that he made a strong proof of alibi and gave an explanation of the presence of cottonseed meal on his clothing. The court in that case say: "Eliminating the fact of the cottonseed meal being on appellant's clothing, there is hardly a fact in the case looking towards guilt, unless it be the fact that he crossed the river and recrossed it on that night; but the guards exclude the idea that he went more than 100 yards from the bridge, and they saw him no more during the night. He returned from this point home. This is a case of circumstantial evidence, and the facts are not sufficient, under this record, to raise anything like a serious conclusion of guilt; much less does it exclude every reasonable hypothesis except one of guilt. Appellant was a negro, and the hogs were taken; but this could not be relied upon to sustain the conviction. There must be some sufficient evidence to show that the negro and the hogs got together, and that the negro took the hogs." While persuasive, we do not think the opinion in this case is conclusive. We have here these significant circumstances: Foscue was the owner of a hog which was well known to the witness Hilton, and was shown *Page 95 to have been in Foscue's mark. The head of this hog was found and the hide and the feet. The hog had been skinned entirely down to its feet and its feet cut off. At some distance from where the remains were found and beginning at a place where there were evidences of a hog rooting in the ground, barefoot tracks had been traced to where the hog was killed and the same barefoot tracks were traced thence some little distance in the direction of appellant's place. At his place on the same day fresh hog meat was found which had been skinned. It also appeared that the head of this hog was missing and was not included in the meat preserved. Taking into consideration all the facts, that appellant went barefoot; that he was the only negro in that neighborhood who did go barefoot; that the barefoot tracks found were about the same size as the foot of appellant; that the meat found in his possession had been skinned and that the head was conspicuous by its absence, considered altogether, in our opinion was evidence upon which the jury were justified in concluding that appellant had stolen the hog in question. At least the evidence is of such gravity as would scarcely justify us, sitting as a court of appeal, in finding that there was no evidence from which the jury might have concluded that appellant was guilty.
The other questions are sufficiently discussed in the opinion to require no further discussion. Believing that there was no error in the original opinion, the motion for rehearing is hereby overruled.
Overruled.