The State, through its very able district attorney of Smith County, has filed a motion for rehearing with a discussion of the authorities cited to sustain the prosecution. It is contended that the holding of this court is contrary to Hamon v. State, 135 Tex. Cri. Rep. 347, 119 S.W.2d 1057; Brooks v. State, 115 S.W.2d 678; Bryant v. State, 98 S.W.2d 189; Brooks v. State, 95 S.W.2d 136; Warren v. State, 94 S.W.2d 463; Greer v. State, 32 S.W.2d 845, and Wesley v. State, 147 S.W.2d 493.
The very exhaustive opinion reversing this case indicates the careful consideration given to the question presented by the members of this court while it was before us on original submission. While it will not be feasible or necessary to discuss the facts of each of the foregoing cases, it will be understood that if a holding in either of them is construed contrary to the doctrine announced in the instant case, it is hereby modified so as to conform with the original opinion or, if necessary, overruled. We think, however, that a thorough understanding of the facts of each case will reveal that most of them are distinguishable. It has probably not been considered necessary always to state the facts of a case as fully as some may think should be done. This seems to have been the cause of some confusion. The difficulty which prosecuting attorneys and trial judges have had in construing these decisions is recognized, but is unavoidable. The doctrine laid down in this case by the original opinion must be sustained and it is the law of the State.
The State's motion for rehearing is overruled. *Page 397