ON MOTION FOR REHEARING
DAVIDSON, Judge.Very courteously but very directly and positively, appellant impresses upon me the fact that I agreed that the evidence was insufficient to support the conviction in the Alexander case, 164 Texas Cr. Rep. 663, 302 S.W. 2d 414.
Appellant asserts that there was more evidence to support Alexander’s conviction than there is to show his (this appellant’s) guilt, here, and that consistency requires that the Alexander case be followed and the instant conviction be reversed.
If appellant is right, then I am wrong and was in error in agreeing that the evidence here was sufficient to authorize his conviction.
When a judge realizes that he is wrong and has erred in the *97performance of his duty, he should not only be the first to admit it but should do so without hesitation or equivocation. This I am here doing, because I have reached the conclusion that the holding in the Alexander case precludes an affirmance of this conviction.
Such conclusion is primarily based upon the failure of the state’s witness, Mrs. Nickerson, to identify the appellant as one of the three persons she saw in the Cadillac automobile at the time of the burglary. She was positive in her identification of two of the occupants of the automobile. She had the same opportunity to identify appellant as the third man as she did to identify the other two.
Under the circumstances, Mrs. Nickerson’s failure to identify the appellant must necessarily raise the hypothesis that he was not one of the three burglars. The circumstances relied upon to show appellant’s presence at the burglary must be construed in the light of Mrs. Nickerson’s failure to identify him.
Appellant’s conviction was made to depend solely and alone upon the fact that he was present at the burglary.
Attention is called to the fact that this case was submitted to the jury upon the law of principals applying when the accused is present when an offense is committed by another person, and knowing the unlawful intent of that person in the commission of that offense, aids by acts or encourages by words such person in the commission of the unlawful act.
Indeed, in submitting the converse of the law of principals, the trial court instructed the jury that unless appellant was present and so aided or assisted in the commission of the offense he would not be guilty.
I can not bring myself to the conclusion that the evidence is sufficient to show that appellant was present at the scene of the burglary. Mrs. Nickerson’s failure to so testify presents an outstanding hypothesis which precludes a determination that he was present.
Accordingly, appellant’s motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause remanded.