
    JACOBS v. STATE.
    (No. 5266.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    1. Criminal Law <§=>1160 — Approved Jury Finding — Review.
    Issue as to sale of whisky in local option territory having been submitted to the jury in a charge not complained of, their finding upon conflicting evidence, approved by the trial court, will not be disturbed, in view of White’s Ann. Code Cr. Proc. arts. 734, 766, as to jury being judges of facts.
    2.'Criminal Law <§=>742(1) — Credibility of Witnesses — Province of Jury.
    State’s witness being competent, and having testified to a state of facts which, if true, established defendant’s guilt, credibility of the witness, in the light of impeaching testimony or contradictory facts, was particularly within the province of the jury.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Sam Jacobs was convicted of the sale of intoxicating liquors in violation of the local option law, and he appeals.
    Affirmed.
    Wm. Kennedy and James Kimbell, both of Groesbeeck, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for the sale of intoxicating liquor in violation of the local option prohibition law.

The prosecuting witness testified definitely that he purchased whisky, at the date alleged in the indictment, from the appellant. The sale was denied by appellant, and various circumstances were introduced to dis credit the testimony relied on by the state, and its witness was impeached upon collateral matters.

The issue was submitted to the jury in a charge which is not complained of, and their finding upon conflicting evidence having been approved by the trial court, this court is not authorized to disturb it. White’s Code Cr. Proc. art. 766, provides:

“The jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony.”

And in article 734, Code Cr. Proc., it is declared:

“The jury are the exclusive judges of the facts in every criminal cause.”

See cases, Vernon’s Code Cr. Proc. p. 689, note 15. This court has never assumed the authority to reverse a case where the evidence, though conflicting, is sufficient if believed by the jury.

The state’s witness being a competent witness, and having testified to a state of facts which, if true, establish the guilt of the appellant, his credibility, in the light of impeaching testimony or controverting facts, is peculiarly within the province of the jury. It is neither practicable nor lawful for the appellate court or the trial court- to tafee away from the jury the.authority conferred upon them by law to pass upon the weight and credibility of evidence. The trial court, in reviewing the matter on motion for new trial, may have some discretion' to set aside the verdict which he, after hearing the evidence, regards as unjust; but that discretion does not exist in an appellate court, the judges of which have neither seen the witnesses nor heard them testify. The law recognizes, and the courts have often affirmed, that where the evidence is conflicting the jury and the trial judge are in a position much more favorable than the judges of the appellate court to determine whether the verdict reflects the truth. See Johnson v. State, 200 S. W. 833.

The judgment is affirmed.  