The opinion
HENDERSON, Judge
(Dissenting). In agreeing to the overruling of the motion for rehearing, I would state that I believe we were in error in holding that there is a difference in the duty of the court with reference to charging on motive and intent, to wit: that in the former the
*627
court was not required to limit the testimony to the particular purpose of its introduction, while in the latter the court is required to do so. The authorities cited by appellant support his contention to the effect that where an extraneous crime is introduced to show motive or intent, there is no difference in the duty of the court with reference to limiting such testimony to the purpose of its introduction. But all the authorities with which I am familiar hold, that in either event it only becomes the duty of the court to limit such testimony, whether of motive or intent, where it might be used for some other purpose against defendant than for the particular purpose for which it was introduced. The testimony here complained of, and which the court did not limit, related to an attempted abortion of the wife of deceased by appellant, prior to her marriage with deceased. The evidence in regard to this matter did not show an extrinsic crime. Indeed it was no crime at all, the attempt being with means not calculated to produce an abortion, and so could not constitute an offense. Williams v. State, 19 S. W. Rep., 897 ; Cave v. State, 33 Texas Crim. Rep., 335 ; Fretwell v. State, 67 S. W. Rep., 1021 . Hot being an extrinsic crime, it did not become necessary for the court to limit its effect. The evidence in my view was introduceable to show the influence appellant exerted over deceased’s wife, and to show his intimate relations with her, which he denied;. and I do not believe the jury was likely to appropriate it to any other purpose.
As to the evidence of Weaver (appellant’s father), it was admissible in the first instance to show appellant’s conduct on the night in question, as suggesting appellant’s interest in deceased’s wife at that time, and his determined effort to have her go with him to Wilbarger County. When appellant rebutted this with testimony tending to show he did not go to his wife’s father’s house to see deceased’s wife on the particular night, but went to his own father’s house on that occasion, it then became pertinent on the part of the State to show that it was not true, as attempted to be proved by him, that he only went to his father’s house on that occasion about breakfast time.
As to the bill on the. production of the stick with which the witness Bell measured the boots, the main fact was the measurement and correspondence between the boots which witness testified he measured and the tracks. .The stick he used was no more required to be produced than would a square or yard measure with which the witness might measure a track. Besides this, I think sufficient effort was made to find the stick.
With these views, I agree to the overruling of the motion for rehear- ' mg-