Appellant presents an able motion, asking for a rehearing on two grounds, viz:
(1) That we erred in holding originally that the charge, limiting the purpose for which evidence of the taking of cattle other than those charged in the indictment was admitted was not on the weight of the evidence.
(2) That we erred in holding correct the action of the trial court in overruling appellant's objections to the testimony of the witnesses Gilmore and Biggs as to the identity of certain tracks accompanying the trail of the alleged stolen cattle, with certain other tracks made by horses seen to be ridden by appellant and his brother-in-law, who were indicted for the alleged theft.
Examining said motion, we find certain cases cited as supporting appellant's first contention, to wit: The Counts case, 89 S.W. Rep., 972, by reference to which we find that it is based, without much discussion of the question involved, upon the Stull case, 84 S.W Rep., 1059. Examining the Stull case, we observe that the objectionable charge therein is as follows:
"The testimony before you of defendant as to his having been charged with another crime or crimes than the one for which he is now on trial, was admitted only for the purpose of going to the credibility of the defendant as a witness, and for no other purpose, and you will consider it for no other purpose whatever."
This Court held that said charge was on the weight of the *Page 352 evidence, because it assumed that defendant had testified that he had been charged with other crimes, when in fact he had not; and because the court told the jury that certain evidence "goes to his credibility." We think this was correctly held to be on the weight of the evidence.
In the Counts case, supra, the jury were told by the trial court that certain evidence "was offered and admitted for the purpose only of impeaching the defendant as a witness in this case; and you will consider said evidence for the purpose for which it was admitted before you, and for no other purpose." The objection to said charge is apparent. It plainly states that the evidence was admitted to show that defendant was untruthful, and that the jury should consider it for that purpose.
Referring again to the charge in the instant case, we note it is exactly what was stated in the Carter case, 23 Texas Crim. App., 508, to be the law, and to be what the court should state to the jury. Judge Willson, in that opinion, holds as follows:
"This being the evidence, the court should have explained in its charge to the jury the purposes of such evidence, that is, that it was admitted for the purpose of establishing identity in developing the res gestae, or to prove the guilt of the accused with theft by circumstances connected with the theft, or to show the intent with which the accused acted with respect to the property for the theft of which he was on trial. (Alexander v. The State, 21 Texas Ct. App 406), and that they could not convict the accused for the theft of any other horse than that named in the indictment."
This case has been cited frequently. In the Dunn case,43 Tex. Crim. 25, this Court upheld the following charge, which is almost identical with the one in the instant case:
"You are instructed that you can only consider such evidence and testimony for the purpose for which it was admitted; that is, to establish the identity, in developing res gestae of the alleged offense, or to prove the guilt of the accused by circumstances connected with the commission of the offense (if any) for which defendant is on trial, or to show the intent with which defendant acted with respect to the sending or causing to be sent (if he did do so) the instrument described in the indictment. And you will consider such evidence for no other purpose, for you cannot convict defendant for mailing or sending any other instrument or document than the one described in the indictment herein (if he did so.)"
We do not think the objections to this part of the charge of the trial court sound.
Referring to the second objection — that we erred in refusing to sustain appellant's objection to the testimony of the witnesses as to the identity of certain tracks. Three cases are presented and discussed in the motion for rehearing, as holding a doctrine contrary to that announced in our original opinion; to wit: Parker v. State, *Page 353 46 Texas Crim. Rep., Tankersley v. State, 51 Tex. Crim. 170, and Smith v. State, 45 Tex.Crim. Rep.. We have carefully examined these cases and do not understand them to hold as contended by appellant. In the Parker case there were two bills of exceptions taken to the testimony as to tracks. One complained that a witness who observed tracks near the place of the homicide and afterward saw defendant with what he believed was a different shoe on, was permitted to say that he believed that the shoe worn by defendant was about the same size as the track he saw. Passing on this bill, our Court, after reviewing, authorities, to which we will later refer, says:
"It occurs to us . . . that the witness Safford did not detail sufficient facts in order to give his opinion to the jury as to the similarity of the tracks made upon the ground and the tracks known to be made by appellant."
The other bill on this point was to the evidence of the witness Edmunds, to the effect that he saw tracks near the scene of the killing, which he described; that he followed said tracks about 110 yards and then lost them, but later picked them up and followed same to a woodland, and that within the 400 yards of the woodland he saw only one or two tracks; that after passing out of the woodland he found one other track fifty or seventy yards from appellant's house. This witness was then permitted to say that the tracks he saw at the other places looked like the tracks he saw near the scene of the homicide, and that he thought they were the same tracks. This evidence was objected to because no measurements were made, and no peculiarities detailed, nor a sufficiently definite description of the size and appearance of the several tracks seen at different places given. This bill was explained by the trial court to the effect that while this witness did not measure the tracks, he described their appearance and peculiarities. This Court, in passing upon said bill, upheld the admission of the testimony. The legal attitude of the testimony of the witness Edmunds in that case is exactly the same as that of the witnesses Gilmore and Biggs, in the instant case. These latter described the tracks seen in one place and also tracks seen in another, and after describing their peculiarities, were permitted to say that in their judgment said tracks were identical, which is the holding in the Parker case.
The Tankersley case, supra, is less applicable. In that case, the witness, after stating that he saw certain described tracks near where the theft was committed, further stated that he saw the shoes worn by the Tankersleys, which he also described, stating in the same connection, that he supposed there were a number of people in the neighborhood who wore shoes like those worn by the Tankersleys. In this condition of the record, he was permitted to say: "In my opinion, the Tankersley boys made the tracks around my cotton pile . . . and the tracks we traced." This Court held such evidence *Page 354 was inadmissible, and Judge Henderson says: "We do not believe the bill even shows that he (the said witness) saw any tracks made by those shoes. He made no measurements . . . did not know the number of the shoes worn by the defendant or those making the tracks, noted no peculiarity in regard to the tracks as having been made by a run-down shoe, though he says appellant's shoes appeared to have been run down." This Court reasons further in said opinion, and sums up the matter, thus: "He was not authorized on the meager data furnished by him to give in evidence to the jury his opinion that the tracks made at his cotton pile were appellant's tracks."
In Smith's case supra, there was no comparison of tracks whatever, the witness saying that the tracks he saw which he took to be defendant's tracks, were made by a number eight or nine shoe, and appeared to be made by a shoe broad across the ball and narrowing toward the toe, and that the heel of the right foot appeared to be worn; that he saw defendant wearing a pair of shoes broad across the ball and narrowing toward the toe, and that the heel of the right shoe was worn off on one side.
After referring to the testimony of other witnesses showing the hardness of the ground at the place, and the number of persons present, and that there were no tracks at all, this Court says:
"It occurs to us that before a witness is authorized to give an opinion on so vital a matter as the similarity of tracks, as a circumstance tending to connect appellant with the offense charged, his testimony should be more certain than it is here."
Each of these cases recognizes the rule that a witness in a particular case may give his opinion as to the similarity of tracks, and none of these cases make the measurement of these tracks a prerequisite to the expression of said opinion. On the contrary, the unbroken line of decisions of this State, and every other State with which we are familiar, hold as is held in the Parker case, the Tankersley case, and others, that a witness who has made measurements of the tracks, and the foot or shoe of the defendant; or who has made some such comparison between the tracks and the shoes of the defendant, as placing the shoe in the tracks; Or who has detailed peculiarities in the tracks on the ground which correspond with the shoes, or with the proven or admitted tracks of the defendant, that in either of these cases or instances the witness may give his opinion as to the similarity of the tracks. — Crumes v. State, 28 App., 516; Goldsmith v. State, 32 Tex.Crim. Rep.; Baines v. State, 66 S.W. Rep., 847; Gill, 36 Tex.Crim. Rep.; Kennedy v. State, 19 Texas Crim. App., 618; Angley v. State, 35 Tex. Crim. 427; State v. Morris, 84 N.C. 756; Young v. State, 68 Ala. 569; Murphy v. People, 63 N.Y. 590; and others cited in original opinion.
We do no believe these decisions state the law incorrectly, nor shall we initiate the holding that measurements are necessary as a *Page 355 predicate to the giving of opinions in evidence of the similarity or identity of tracks. In the instant case both the witnesses were men of much experience in tracking cattle and horses, as appears from the record. Their testimony gave the peculiarities of the tracks seen at the different places, and they were correctly allowed to state thereafter that in their opinion the tracks were the same. The rule obtains in this State in regard to many characters of opinions, that after witnesses have stated the facts upon which the opinions are based, they may be permitted to give in evidence said opinions, their weight being a question for the jury.
The motion for rehearing is overruled.
Overruled.