Johnson v. State , 93 Tex. Crim. 150 ( 1922 )

ON REHEARING.

December 20, 1922..

MORROW, Presiding Judge.

After the rendition of the verdict by the jury and its approval by the trial judge, it is the duty and practice of the court of appeals in testing the sufficiency of the evidence, to view it from the State’s standpoint.

In this case, the State’s witness knew the appellant and saw him about fifty or seventy-five yards distant coming in the direction of the witness; that he saw him get up on a passenger coach which was standing on a certain track; that he was carrying two suit cases in his hands when he got on the coach and when he went in it. The witness followed him in and found therein no person save the appellant and the “News Butch,” who were in the back end of the car. The car was divided into two apartments — one for whites and the other for negroes. The suit cases were found in the negro apartment. A search was made by the witness for other suit cases, but none were found. The suit cases contained several gallons of corn whisky.

No testimony was offered by the appellant except that he testified that he did not have the grips when he got on the car; that he did not have anything; that the whisky was not his.

As stated in the original opinion, there was a definite issue of fact. The State’s witness testified that the appellant got on the car with grips in his hand. The appellant testified and admitted that he got on the car, but said that he had no grips with him at the time. It was in daylight, the view was not obstructed, and one or the other told the truth. If he had the grips and took them on the car, the circumstances, which are undisputed, are sufficient to identify them aside from the direct testimony of the State’s witness. The law does not warrant a. disturbance of the verdict by this court. The motion for rehearing is therefore overruled.

Overruled.