
    J. E. Maultsby v. The State.
    No. 13448.
    Delivered June 18, 1930.
    Rehearing denied November 19, 1930.
    Reported in 32 S. W. (2d) 357.
    The opinion states the case.
    
      G. A. Walters of San Saba, for appellant.,
    
      A. A. Dawson, State’s Attorney, of Austin, for the State.
   MARTIN, Judge.

Offense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.

The first count of the indictment charges a sale of intoxicating liquor by appellant to W. V. McComb. McComb testified to the purchase of a gallon of whiskey from appellant for which he gave him a check for $10.00, making on same at the time “for pecans,” which notation was made at the instance of appellant. He was corroborated in his testimony by two other witnesses.

Testimony for appellant shows that this witness actually bought ten dollars worth of pecans from him at the time and that he did not buy any whiskey.

The insufficiency of the evidence is vigorously argued, particular stress being laid upon testimony which shows the bad character of witness McComb. We regard the evidence as sufficient, if believed by the jury, to sustain the conviction and the credibility of witness McComb is a matter which is to be passed on by the jury under the statute and with whose discretion we have no authority to interfere.

The indictment contains four counts. Only the first count of the indictment was submitted by the Court in his charge to the jury. The verdict of the jury was as follows: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at one year’s confinement in the penitentiary.” It is claimed that this verdict is not responsive and is vague, indefinite and uncertain, since the jury may have found the defendant guilty of a count other than the first count. The Court authorized a conviction only upon the first count and we will not presume the jury violated its oath and convicted appellant of a count not submitted to them and upon which they were wholly unauthorized to convict. It will be presumed that the jury followed the instructions of the Court. Lewis v. State, 86 Tex. Crim. Rep. 135; Arnett v. State, 105 Tex. Crim. Rep. 132.

Finding no error in the record, 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.

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

We have carefully examined and considered the motion of appellant urging us to reverse the case because of the insufficiency of the testimony. We must adhere to the conclusion reached and announced in our original opinion. To do otherwise would be against all precedents.

The motion for rehearing will be overruled.

Overruled.

Hawkins, J., absent.  