
    NEWSOME v. STATE.
    (No. 10021.)
    (Court of Criminal Appeals of Texas.
    May 5, 1926.
    Rehearing Denied June 25, 1926.
    Application to File Second Motion for Rehearing Denied Nov. 24, 1926.)
    1. Criminal law &wkey;G092(7)—Bill of exceptions filed more than 90 days from giving notice of appeal held too late (Code Cr. Proc. 1925, art. 760).
    Bill of exceptions filed more than 90 days from giving notice of appeal held too late, in view of Code Cr. Proc. 1925, art. 760.
    2. Intoxicating liquors &wkey;>236(ll)—Evidence held to sustain conviction of selling intoxicating liquor.
    Evidence that defendant told purchaser to drive automobile to named place and wait, and delivery there of whisky, held to sustain conviction.
    On Motion for Rehearing.
    3. Criminal law &wkey;>747—Conflicts in testimony are for jury.
    Conflicts in testimony are to be settled by jury.
    4. Criminal law &wkey;>742(3)—That witness yields in some matters does not affect propo-sitipn that his credibility is for jury.
    That witness, on cross-examination, yields in some matters and to some extent, does not affect proposition that his credibility is for jury.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    S.G. Newsome, Jr., was convicted of selling intoxicating liquor, and he appeals.'
    Affirmed.
    M. B. Briggs and C. E. Florence, both of Gilmer, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Upshur county of selling intoxicating liquor; punishment, two years in the penitentiary.

It is to be regretted that under the change made by the 1925 Code of Criminal Procedure (article 760), which went into effect September 1st of that year, the time within which bills of exception may be filed was changed from 90 days from the adjournment of the trial term of the court below to 90 days from the giving notice of appeal. In the case before us the bills of exceptions were filed 102 days after the giving of the notice of appeal. ^ We have no option but to give effect to the law as it now is, and hold that the bills of exception were filed too late.

The state’s testimony seems ample to make out a case. Three yolmg men in a car, going on a fishing trip, stopped at appellant’s store, and Hill went in and had a conversation with appellant, and, according to Hill’s testimony, asked appellant if he had anything. Hill testified that appellant replied that, if he would drive on down the hill and wait there, a negro would bring it to him. He said appellant told him the price would •be $2.50; that he and the other boys drove their car down to a certain place, where appellant told them to wait, and that presently a negro came and handed to him a quart jar of white whisky in a paper sack; that he did not have any words with the negro-, but handed him $2.50 when the negro delivered the whisky to him. Witness said he had seen the negro before at appellant’s store. There seems some contention on the part of appellant that the facts are not sufficient to support the conclusion that this was a sale of liquor by him, but we are unable to agree to the correctness of this contention. The witness Hill was examined by each side several times, and adhered to the proposition that appellant either told him that he would send him the whisky by a negro or that a negro would bring it to him.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Conflicts in testimony are to be settled by the jury, and their conclusion as to the credibility of a witness will rarely be disturbed by the appellate court. Human experience teaches that purchasers of liquor are ordinarily reluctant to testify against those who have sold to 'them. In this case it is apparent that the prosecuting witness did not wish to testify against appellant. It is shown without any controversy, except in the partial explanations or denials made by said prosecuting witness on cross-examination, that for some reason said witness Hill went to appellant, the proprietor of a country store, to get some whisky. Appellant told Hill to drive to a point a short distance up the road, and, according to Hill, made the following statement:

“He told me then that he would send it up there by a negro * * * and Mr. Newsome told me that the price would be $2.50. * * * I don’t remember whether he said he would send it, or whether he would have the negro bring it to me; it was one or the other.”

The witness drove to the point indicated, waited a short time, and the negro appeared and handed him the whisky, for which he paid the negro $2.50. The fact that a witness on cross-examination yields in some matters and to some extent does not affect the proposition that his credibility is for jury. It would appear legally immaterial whether appellant sent the whisky or whether he had the negro to bring it.

The motion for rehearing will be overruled.

On Application to File Second Motion for Rehearing.

MORROW, P. J.

We are unable to agree with the appellant in his contention that we were mistaken,in holding the evidence sufficient to support the conviction. Therefore the request to file a second motion for rehearing is overruled. 
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