Pitts v. State , 100 Tex. Crim. 657 ( 1925 )

Responding to the appellant's motion for rehearing, we have carefully re-read the statement of facts. The evidence seems conclusive that the witness Carey obtained the whiskey which was introduced in evidence from a man in whose car he was riding. Cary testified in a definite manner and other circumstances corroborated him. He was unable to identify the appellant as the person in whose car he traveled and from whom he got the whiskey. The witness Dale, however, was quite definite in his testimony as to the identification of the appellant as the man who was in company with Cary. In our judgment, the only theory upon which this court could hold that the evidence was insufficient to support the verdict would be that Dale's testimony was false. It is true that he admits that he had had no previous personal acquaintance with the appellant. However, he saw him several times on the day of the occurrence and had occasion and opportunity to take note of his appearance. His testimony does not reflect the mere opinion touching the identity as was the case in Smiley v. State,87 Tex. Crim. 528.

The motion for rehearing is overruled.

Overruled.