¶1 ON REHEARING.
¶2 June 27, 1913.
¶3 Some time since an opinion was handed down herein reversing the judgment. In making a statement of the facts in conclusion to the effect that in the mind of the writer the evidence was not sufficient to support the judgment, that statement expressly excludes the idea that my brethren expressed any opinion in regard to it, and that my views were not to be held in any way binding upon them.
¶4 It is contended, however, that in one portion of the opinion it'was erroneously stated that Lyles had charge of or was connected with the Swift & Co. ranch. Before going further I wish to state that closer inspection of the record will disclose that it was erroneous to state that Lyles was in the employ of Swift & Co. The record discloses that the witness Bell was in the employment of Swift & Co. In dictating it is possible the names may have been miscalled by the writer. However, in the mind of the writer that is too trivial for any serious discussion in view of the record. Some of the testimony does show that Lyles owned land near the Swift & Co. ranch, amounting to about two sections, and one of his houses was burned the same night that the house was burned where Bell was employed. The evidence in the case dealt rather indiscriminately with both burnings. The theory of the State was, and the facts showed fairly well that the same parties burned both premises. It would, therefore, necessarily follow in this connection that the accused was entitled to meet any and all facts relied on by the State to connect him with either or both burnings. The State pursued the investigation *316 as to both burnings assiduously, and all for the purpose of showing that the same parties burned both houses, and further, by such circumstances as it could gather that appellant was one of the three parties who did the burning. It is a fundamental proposition that where an accused is confronted with facts that are thought to be criminative, he has the same right to meet those facts as the State had to place them in evidence before the jury. This proposition is so clearly right and fundamentally correct it would need no argument to sustain it. This was sought to be done through the witnesses Bell and Lyles as shown by bills of exception, but the court refused to permit this evidence to go to the jury. It is urged by the State in the motion that because this evidence was not in the record that, therefore, there was no error. The reason the evidence was not in the record, as well as such evidence as might have followed the introduction of this connecting the parties, was on the objection of the State, it was excluded. We sufficiently treated Bell’s evidence in the original opinion and do not care to rehash it. By Lyles appellant offered to show that he had had trouble with Yates prior to the burning and paid a fine for whipping or slapping him. This was ruled out. Lyles’ house was burned. I do not care to follow this matter further. This evidence was clearly admissible, and should have gone to the jury. In this case the reasons were as strong as possible perhaps to be brought out for the reason the State relied exclusively upon circumstantial evidence. No one testified as to who the parties were that did the burning, for no one saw them. The State proved there were three parties present. One of the horses ridden is shown to have belonged to Byron Taylor, wdiere one of the Bay boys had been living, and which was a mile and a half north of and farther away from where the fire occurred than where defendant lived. This horse was traced from the fire beyond appellant’s house to Taylor’s house. One of the Bay boys had been working at Taylor’s. The facts in the case, as stated in the original opinion, shows that one of the parties rode what they called the “horse with the narrow heel.” This animal was not found at defendant’s, although the closest investigation was made, and in fact the horse was not located anywhere or by anybody. Some of these parties whom the defendant contends had animosity toward Lyles and Bell, either or both, lived beyond appellant’s residence and in the way the horses should have gone. The searching parties investigated enough to find where the Taylor horse went, but ceased to investigate as to the horse with the narrow heel. Why this cessation was made is not explained in this' record. The State’s motion seems to indicate that inasmuch as the prosecution had adduced evidence tending to connect the defendant with the offense, that, therefore, he was not authorized to show facts or circumstances of the same character before the jury to the effect that he did not participate in the burning, and that some other parties may or might have done it. This is not right. Such contention ought not to be made, at least it is not the law in Texas. The authorities are cited in the original opinion, and it is unnecessary to go further into that question.
¶5*317 Another contention is made by the State, that is, that the writer of this opinion was wrong in stating in his judgment the evidence was not sufficient to support the conviction. I have read what the State has to say in regard to the matter, and am the more firmly convinced that I was right in the original opinion in this respect'. Then and now I am not undertaking to bind my brethren in regard to this matter. I have gone over the State’s motion and copy in part from it as follows: “The record in this cause does not show wherein any other person than the defendant had any cause or grievance against the witness Lyles, whose property is alleged to have been destroyed by the defendant, nor is there any testimony in the record to show that even should there have been any other who had a grievance against the said witness there is no testimony that any other person than the defendant had an opportunity, or was in that neighborhood, or that wore the same kind of shoes, nor was there any to show that any other person in that community that wore an overcoat of the description that was found there, nor is there any testimonjr, directly, that any other person in that community had on corduroy pants on that day, nor is there any testimony that the tracks of the horses as found on the premises of Alek Lyles led to any other place than the premises of the defendant. On the contrary, the evidence all shows that the defendant did have a motive, directed against Alek Lyles; that the defendant lived six or seven miles from the said Alek Lyles, and not nine or ten, as expressed by the court in its opinion; that the defendant did have “the opportunity; that he did have horses; that he was wearing corduroy pants at the time he was arrested and on the’ day of the fire,” etc.
¶6 Warren Bell testified: “I have seen other people down there with corduroy pants on except Will Ward. They are common in that country, and a good many people wear them.” The same witness further said that, “I do not think the way we all went from Lyles’ house to Will Ward’s could have been over nine miles.” Again he- says: “We might have been longer than two hours and a half making that nine miles.” Bell and others were following the tracks of the supposed guilty parties. Frank Pate testified for the State as follows: “I have been working for Swift & Co. four years the llth of last April, and am working for them now. Alek Lyles is in possession of some land down there, hut I don’t know how much, a couple of sections, I judge.”. This quotation is made to show how the name of Lyles may have been used instead of Bell. While Lyles did not have charge of the Swift & Co. Shoe Bar ranch, as the witnesses term it, he had two sections with them and the ranch seems to have been practically all around it, arid the evidence with reference to the wood choppers having ill-feeling toward people on Shoe Bar ranch might have some effect as the fires occurred at the same time and by the same parties. It was admissible to show motive on the part of others to burn both premises. Whoever burned one place burned the other, and any fact that would go to connect these wood choppers and others than the defendant with either one would *318 necessarihr connect them with the other. Nor could this affect the right of appellant to have the jury instructed as to the fact that others had motives, for hy the testimony it appears that Sol Ray, Ed Ray and John Ray had the same motive against Lyles and the Shoe Bar ranch people on account of Sol Ray having been accused of cattle theft, as was Olen Ward, brother of appellant,, and it seems to be undisputed that these people were in the neighborhood, and that the tracks followed by the officers led in the direction of where they lived or their places of residence. One of the principal facts relied upon by the State to connect appellant with it was because some of the parties had charged Olen Ward with cattle theft. I do not care to review the matter any further. After looking over the facts again, I am fully persuaded I was correct in my views as to the sufficiency of the evidence.
¶7 The motion for rehearing is overruled.
¶8 Overruled.