
    MAXWELL v. STATE.
    (No. 11730.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    On Motion for Rehearing May 2, 1928.
    Robbery c&wkey;>24(3) — Evidence held not to warrant conviction for robbery, where main incriminating fact was track in > sand made by average sized shoe.
    In prosecution for robbery with firearms, where main incriminating fact was track in sand, made by average sized shoe with break in it, which corresponded with shoe of defendant, evidence held, not to warrant conviction.
    Commissioners’ Decision.
    Appeal from District Court, Midland County ; Chas. L. IClapproth, Judge.
    C. H. Maxwell was convicted of robbery with firearms, and he appeals.
    Reversed and remanded on rehearing.
    Samuel K. AVasaff, of Ranger, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, robbery with firearms ; penalty, five years in the penitentiary.

This case was affirmed on a former day of this term of court, but upon mature and careful reconsideration of the facts we have concluded that they are insufficient to identify appellant as the guilty party, and our former opinion is accordingly withdrawn.

Appellant was seen at a filling station in the town of Midland on the afternoon of the robbery, and about two blocks away from where same occurred. B. C. Grafa was held up by. an unmasked party having a cap pulled over his face, and robbed of some money at the point of a pistol. Ap>pellant was arrested the next morning in an adjoining town, and at that time had neither a pistol nor money in his possession. Grata testified that, when arrested, appellant had on a similar coat, but a different pair of trousers; that he walked pretty much like the man who robbed him; that his voice sounded like the same; that he went with the sheriff, and took one of the shoes of appellant and fit the shoe in the tracks of the man who did the robbing, and that they fit pretty well; that there was a hole in appellant’s shoe, and that is what made it look so much alike. There was a mark on the right shoe, and that showed pretty well in the track. He said the sand had blown up around the car, and he could* not say whether it was damp at that time or not. The sheriff testified, in substance, that he set down the appellant’s shoe in the track pointed out to him as that of the man who did the robbing, and that it fit in same as nearly perfect as it could; that the break in the shoe appeared and was similar; that it was an average size shoe; and that some other shoe could have made it.

The good character of appellant was testified to by a number of witnesses. Appellant proved by his father that he had never been in any trouble, and never owned a gun in his life; that he had left Port Worth for -the oil fields in search of work to assist his poverty-stricken family.

Both witnesses present at the scene of the robbery refused to express the opinion that appellant was the man who robbed Grafa.

It will be observed that the main incriminating fact was a track made by an average size shoe with a break in it in sand not shown to be damp, and that appellant had neither a weapon nor the fruits of the robbery in his possession when arrested a few hours thereafter. Other slight circumstances are the similarity of his voice and walk given by witnesses whose observation.was taken under stress of excitement, and whose opportunity to closely scrutinize the guilty party was very limited. A conviction in this case would rest upon identification of a track made in the wind-swept sand of West Texas. No other incriminating facts of any cogency are shown. The testimony for appellant, given without any contradiction, showed him to be one of the world’s unfortunate poor, lured by the hope that the West held for him a promise of freedom from poverty and want. He faced instead a felony charge, without funds and without friends, and under circumstances not of his own making, which militated against an acquittal. We are not able to give our sanction to a conviction resting upon the evidence of identification as appearing in this record. Warren v. State, 52. Tex. Cr. R. 218, 106 S. W. 132; Smiley v. State, 87 Tex. Cr. R. 528, 222 S. W. 1108.

Appellant’s motion for a rehearing is granted, and the judgment of the trial court reversed, and the cause remanded.

PER CURIAM. 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. 
      
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