The motion for rehearing in this case raises a number of questions. The only one which we deem it necessary to notice is the assignment questioning the correctness of the opinion, which in effect held that it was competent for the State to offer evidence in confirmation of its claim of the unlawful sale of intoxicating liquors, that the seller had contemporaneously with such sale, in his possession a large amount of whisky. The motion attacks this position with great vigor, and contends that the opinion of the court is at variance with the former holdings of this tribunal in the cases of Lane v. State, 50 Tex. Crim. 335; 15 Texas Ct. Rep. 882; Henderson v. State, 49 Tex. Crim. 269; 15 Texas Ct. Rep. 570; McKinley v. State,52 Tex. Crim. 182; 20 Texas Ct. Rep. 350; Parish v. State,48 Tex. Crim. 578; 14 Texas Ct. Rep. 10; and Baughman v. State, 49 Tex.Crim. Rep.; 14 Texas Ct. Rep. 254.
It was also stated, as if it was a matter of reproach, that the holding of the court in the opinion heretofore rendered is not based upon any authority, and that none is cited by the court in its support. That the decision is along new lines in this State is not to be denied; that it is in conflict to some extent with the cases cited, and probably other cases, is not questioned, and was fully understood at the time the opinion was delivered. It was written with full knowledge of what had heretofore been held by this court, but represented the best thought, and the deliberate conviction of the court, see Biddy v. State, decided at the present term. It was based on what occurs to us such conclusive reasons, and upon principles so obvious and evident, that we felt that the law should be so written and declared. We then thought, as we now think, that no defendant had the conclusive right to shield himself from wrongdoing under the former holding of this or any other court. There can be, as we believe, no such thing as a vested right to commit crime, and when we reached the conclusion that the interest of society, the due enforcement of the law, its proper interpretation, and the good of the commonwealth require that a rule should be written more in consonance with reason and more in accord, as we conceive, with common sense and logic, it was so written in the opinion deliberately, and with due consideration of all there was implied in it. We do not care to elaborate the reasons for the holding in the original opinion. The reasons there given are, as we believe, so evident and so conclusive they ought to meet and will meet on reflection, general acceptance by the profession.
The motion is overruled.
Overruled. *Page 310