Foster v. State

12 S.W.2d 574, 111 Tex. Crim. 278, 1928 Tex. Crim. App. LEXIS 835

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 1928
• Docket: No. 11236.
• Status: Published

Opinions

CHRISTIAN, Judge.

The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for two years.

Appellant calls in question the sufficiency of the evidence. The state’s witness Carl Miller testified, in substance, on direct examination, that he bought whiskey from appellant in the town of Farwell; that he did not remember how much he bought and did not recall how much he paid for the whiskey. On cross-examination, the witness testified that the officers threatened to indict him for transporting liquor if he didn’t state that he got the whiskey in question from appellant; that he, the witness, had previously told the officers that he bought the whiskey from Carra Rawley in Texaco, New Mexico; that after the officers threatened him with prosecution he told them that he got the whiskey from appellant. On re-direct examination the witness stated, in substance, that he was telling the truth when he declared that he purchased the liquor from appellant, but averred on recross-examination, that, “my first statement was true.” The record shows that the witness Miller was under indictment for theft and automobile theft.

We are uñable to agree with appellant that the evidence was insufficient tó warrant the jury in returning a verdict of guilty. The jury were the exclusive judges of the facts testified to by Miller and of the weight to be given to his testimony. Article 706 C. C. P. Although his testimony was conflicting, the witness testified to facts sufficient to authorize the jury to conclude that appellant was guilty as charged.

Article 657 C. C. P., provides :

“The jury are the exclusive judges of the facts . . .”

This court is not authorized to disturb the finding of the jury upon conflicting evidence, where such evidence is sufficient if believed by the jury. Jacobs v. State, 208 S. W. 917.

We quote from the case of Jacobs, supra, as follows:

“The state’s witness being a competent witness, and having testified to a state of facts which, if true, establish the guilt of the appellant, his credibility, in the light of impeaching testimony or controverting facts, is peculiarly within the province of the jury. It is neither practicable nor lawful for the appellant court or the trial court to take away from the jury the authority conferred upon them by law to pass upon the weight and credibility of evidence. The trial court, in reviewing the matter on motion for new trial, may have some discretion to set aside the verdict which he, after hearing the evidence, regards as unjust; but that discretion does not exist in an appellate court, the judges of which have neither seen the. witnesses nor heard them testify. The law recognizes, and the courts have often affirmed, that- where the evidence is conflicting the jury and the trial judge are in a position much more favorable than the judges of the appellate court to. determine whether the verdict reflects the truth. See Johnson v. State, 200 S. W. 833.”

We have carefully examined all of appellant’s contentions-and find no error.

The judgment is affirmed.

Affirmed.

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.