
    MARTINEZ v. STATE.
    (No. 5197.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.
    On Motion for Rehearing, Jan. 15, 1919.)
    1. Criminal Law <0=1090(16) — Review— Necessity oe Statement oe Pacts — Bill oe Exceptions.
    Where the only question suggested in the motion for a new trial is that the judgment is contrary to the law and the evidence, the same cannot be considered in the absence of a statement of facts; there being no bill of exceptions.
    On Motion for Rehearing.
    2. Criminal Law 3=742(1) — Credibility-Question eor Jury.
    The credibility of witnesses is a question for the jury.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Daniel Martinez was convicted of violation of the Prohibition Law, and appeals.
    Judgment affirmed.
    J. B. Larazola and P. E. Gardner, both of El Paso, for appellant.
    E. B. Hendricks, Asst. Atty. Gen,, for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for violation of the Prohibition Law. There is neither a statement of facts nor a bill of exceptions. The only question suggested in the motion for a new trial is that the judgment is contrary to the law and the evidence, which, of course, cannot be considered in the absence of a statement of facts.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case is before the court on appellant’s application for rehearing.

At a former time the case was affirmed, the only complaint being that the evidence was insufficient to support the verdict, and there being then on file no statement of facts or bills of exception, as shown by the opinion of the court.

In connection with this motion for rehearing, appellant flies a sworn statement from the clerk of the district court at El Paso that a statement of facts was filed with him in time and that it was his neglect in failing to send the same up to this court. The statement of facts is now on file in this court and -has been duly considered before rendering this opinion.

As stated in the original opinion, the only contention of appellant is that the evidence is insufficient to support the conviction. Two witnesses testified positively to appellant’s guilt. The testimony of one of them was attacked, and to some extent contradicted, by testimony introduced by the appellant. The evidence of the other witness is pointed and positive as to appellant’s guilt, and this witness is in no wise impeached or contradicted except by the statement made by appellant’s wife.

The question of the credibility of the witnesses is for the jury, and, that issue having been decided in favor of the state, we do not feel that there is anything to show prejudice on the part of the jury or that they acted without due regard for the appellant’s rights.

The motion is overruled.  