
    Kennard Driver v. The State.
    No. 23858.
    Delivered January 14, 1948.
    
      Winfree & Winfree, of Houston, for appellant.
    
      A. C. Winborn, Criminal District Attorney, and E. T. Branchr Assistant Criminal District Attorney, both of Houston, and Ernest S. Goens, State’s Attorney, of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted for the murder without malice of Nathaniel Brown by stabbing him with a knife and was given two years in the penitentiary.

The evidence discloses that appellant was engaged in writing policy for a gambling concern, and that the deceased went into the place with his uncle to make a check of the operations in which the uncle was interested. He was delayed in doing so and a woman in the place asked him for his ticket. The deceased told his uncle not to give his tickets to the woman, that she would steal them from him. Appellant entered the conversation which became a controversy between the appellant and the deceased. At the behest of the uncle, the deceased left the room and, it appears, he waited near the door on the outside. After making some threats the appellant left the room. According to the statements made by the deceased immediately thereafter, he attacked the deceased with a knife and stabbed him in the throat, from which he died in a short while. A number of other witnesses testifing in behalf of appellant told quite a different story. According to their evidence the appellant was justified in acting in his own self defense. According to the statement of the deceased and his uncle it would be a case of murder with malice.

No exceptions were taken to the court’s charge and no bills of exception appear in the record. The brief filed in the case takes the position that there is no evidence to sustain a verdict of murder without malice; that the jury should either have acquitted him or found him guilty of murder with malice.

Under the law, the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony. They had a correct charge on the law and no question is presented for our consideration of which we have jurisdiction. The reasoning in the brief on appeal was, no doubt, presented with force to the jury in the trial of the case and their verdict will not be disturbed.

The judgment of the trial court is affirmed.  