Appellant cites the case of Steed v. State, 276 S.W. 281, on the proposition of the inadmissibility of the testimony regarding the similarity of tracks. Said case is based on the case of Smith v. State, 45 Tex. Crim. 405, which was discussed at length in the case of Mueller v. State, supra. The opinion is expressed that said authority is not opposed to what we have here said.

We are clearly of the opinion in the light of numerous authorities that before a witness is authorized to give an opinion upon so vital a question as the similarity of tracks, as a circumstance to connect the appellant with the offense charged, his testimony should be more certain than is manifested here. Following Smith v. State, 77 S.W. 453; Tankersly v. State, 101 S.W. 234; Ballenger v. State, 141 S.W. 91 and Casonover v. State, 219 S.W. 278. 3. — Same — Confession of Defendant — Under Arrest — Improperly Admitted.

(39 Tex.Crim. Rep., 48 S.W. 510). The motion of appellant to quash the indictment raised a federal question and we are foreclosed by the agreed facts certified in the bill of exception. If we should hold that said bill does not reflect error, there is no doubt but that the Supreme Court of the United States would strike down the indictment under the authority of the recent cases of Norris, Patterson and Hale (supra). We quote from the opinion in Smith v. State, 45 Tex. Crim. 405, 77 S.W. 453, in which the question now before us was considered. "We do not hesitate to assert that under our system of procedure a defendant on trial for a criminal offense is not only vouchsafed a fair trial, but a liberal trial, with every intendment in his favor; and that, no matter what his race or color, he is afforded the equal protection of the laws, which, in our opinion, is best preserved to him by lodging the administration thereof in the hands of the most cultured and intelligent of our citizenship, without regard to other qualifications.

The tender of proof conclusively showed these facts. State v. Warner, 165 Mo. 399, 65 S.W. 584; State ex rel. Passer v. County Board, 213 N.W. 545, 52 A.L.R. 916; Carter v. Texas, 177 U.S. 442, 44 L.Ed. 839; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Rogers v. Alabama, 192 U.S. 226, 48 L.Ed. 417; Green v. State, 73 Ala. 26; Montgomery v. State, 55 Fla. 97, 45 So. 879; Miller v. Commonwealth, 127 Ky. 387, 105 S.W. 899; Farrow v. State, 91 Miss. 509, 45 So. 619; Smith v. State, 4 Okla. Cr. Rep. 328, 111 P. 960; Smith v. State, 45 Tex.Crim. 405, 77 S.W. 453; 35 C.J. 262, 263. (5)