ON MOTION FOR REHEARING.
HAWKINS, Judge.— The State insists that we were in error in holding that argument complained of was a reference to the failure of appellant to testify. It was not the purpose of the court to depart from the holding in Boone v. State, 90 Texas Crim. Rep., 374, 235 S. W., 580, to the effect that to come within the prohibition of the statute the language used must be such that the implication must necessarily be that the language had reference to the failure of appellant to testify. In determining such question the language used must be looked to from the standpoint of the jury as to what their inference would probably be, rather than to the explanation of the party making use of the language as to what he had in mind at the time. The holding in Boone’s case has been re-affirmed in Howard v. State, 108 Texas Crim. Rep., 373, 1 S. W. (2d) 289, and Kennington v. State, 120 Texas Crim. Rep., 192, 49 S. W. (2d) 776, in each of which many other cases are cited. Giving effect to the prin*229ciple announced we adhere to the conclusion reached in our original opinion in regard to the matter.
It is next urged that we were in error in holding that the court should have instructed the jury not to consider for any purpose the fact that the telephone wire leading to deceased’s house had been cut unless the State had proven beyond a reasonable doubt that appellant or some one acting with him was responsible therefor. The State takes the position that the court sufficiently guarded the matter when he gave the general instruction on circumstantial evidence thereby informing the jury that “In order to warrant a conviction on circumstantial evidence each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt.” We are not in accord with the State’s contention in this regard. It may be conceded that the fact of the telephone wire having been cut was established beyond a reasonable doubt. That is not the point. The complaint made by appellant is that unless it was shown that he was connected with the cutting such circumstance should not be considered as a criminative fact against him, and that the jury should have been so told. Hocks v. State, 97 Texas Crim. Rep., 480, 261 S. W., 1053; Glenn v. State, 76 S. W., 758; Sawyer v. State, 104 Texas Crim. Rep., 522, 286 S. W., 209; Miller v. State, 122 Texas Crim. Rep., 59, 53 S. W., 790; Wells v. State, 118 Texas Crim. Rep., 355, 42 S. W. (2d) 607; Hughitt v. State, 123 Texas Crim. Rep., 168, 58 S. W. (2d) 509; Nami v. State, 127 Texas Crim. Rep., 403, 77 S. W. (2d) 528.
The present writer entertains doubt whether evidence regarding the cutting of the telephone line should have been admitted, but my brethren have reached a different conclusion. See Fountain v. State, 90 Texas Crim. Rep., 474, 241 S. W., 489.
In our original opinion it was held that the matter complained of in bill of exception number twenty-nine presented error. Said bill brought forward complaint that over appellant’s objection the State had been permitted to prove by the witness Lewis Whelles that a few days prior to the homicide Fred Opp, in the absence of appellant, had stated to the witness that he (Fred Opp) was expecting trouble. In the motion for rehearing the State calls attention to the fact which was overlooked by us originally that the evidence of said witness shows that at the time Fred Opp made the statement complained of he was trying to secure from witness some 25-20 caliber cartridges. It further appears from the testimony of said witness that Fred Opp knew that Whelles had bought some cartridges *230of that caliber and had used only a few of them. The gun secured by Fred Opp from the witness Mauldin was a 25-20 caliber rifle, which particular rifle was identified as the one had by appellant at the scene of the killing. It being apparent from the testimony of Whelles that at the time Fred Opp made the statement complained of he was trying to secure cartridges which would fit the gun in question we have reached the conclusion that no error occurred in admitting the testimony of the witness Whelles.
In all other respects the State’s motion for rehearing is overruled.
Overruled.