ON MOTION FOR REHEARING.
HAWKINS, Judge.In our original opinion we confused the relationship of the parties and referred to L. C. McElroy as a brother of appellant instead of his nephew. The opinion has been corrected so to show.
We are in accord with appellant in the belief that the statement found in Powell v. State, 100 Texas Crim. Rep., 43, 271 S. W., 913, is correct, wherein it was said: “* * * Where the state has relied largely upon the similarity of tracks * * * for identification of the accused as the party connected with the crime, this court has required much strictness in testimony before holding it sufficient to identify the accused as the guilty party.”
The decision in Powell’s case turned on other evidence than tracks. However, frequent application has been given to the rule above quoted. One of the strongest cases, perhaps, in line with appellant’s contention is Warren v. State, 52 Texas Crim. Rep., 218, 106 S. W., 132; in which the judgment was reversed on the insufficiency of the evidence. We have again carefully reviewed the facts of the present case in the light of appellant’s renewed insistence that the evidence is not sufficient to identify appellant as one of the guilty parties. It had rained early in the night; the soil was of that character which seems to have recorded accurately any impression on it. So susceptible was it that the marks of sacks where they were set down were clearly discernible, and even the prints of the chickens’ toes through the sacks were discoverable on the ground. Every distinguishing peculiarity of the shoe tracks compared with exactness to appellant’s shoes when fitted in them. The sheriff, who seemed to be a perfectly fair witness, said: “* * * The ground was damp and the tracks were mighty plain * * * On *152S. W.’s shoes (appellant) the right heel, about the center tack was worn. That tack would make an imprint in each place we tried it. There was a little nick out on the inside edge of the sole of the left shoe. All that showed up in the tracks just exactly like a picture. The marks fit accurately in each case.”
The size and shape of appellant’s shoes compared with the tracks not only by measurement, but also when placed in the tracks. L. C. McElroy, the nephew, to whom appellant pointed in his evidence as having made the tracks, was much larger than appellant and wore a shoe two sizes larger than those worn by appellant. A number nine shoe would scarcely leave a number seven track.
We are constrained to adhere to our original opinion that we would be unauthorized to disturb the jury’s verdict under the circumstances presented in the present record.
The motion for rehearing is overruled.
Overruled.