ON STATE’S motion for rehearing.
CHRISTIAN, Judge.In the motion for rehearing the State insists that we were in error in holding the evidence insufficient to support the conviction. We have again examined the record, and remain of opinion that the evidence failed to exclude every other reasonable hypothesis except that of appellant’s guilt. We quote from Branch’s Ann. Texas P. C., Section 1877, as follows:
“To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him. Tollett v. State, 44 Texas 95. Porter v. State, 1 Texas Crim. App. 399. Jones v. State, 4 Texas Crim. App. 436. Gill v. State, 36 Texas Crim. Rep. 595; 38 S. W. 190. Clifton v. State, 39 Texas Crim. Rep. 619; 47 S. W. 642.”
We think the testimony does no more than to raise a suspicion that appellant participated in the commission of the offense.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.