
    6689.
    Teal v. The State.
    Decided January 28, 1916.
    Accusation of public drunkenness; from city court of Carrollton —Judge Beall. May 5, 1915.
    
      Smith, Reese & Smith, for plaintiff in error.
    
      C. E. Roop, solicitor, contra.
   Russell, C. J.

1. Proof of drunkenness is generally a matter of opinion derived from the conduct of'the person alleged to he drunk, but in the present case one witness swore positively and directly that the defendant was drunk, and his statement was not challenged. The various acts and utterances of the accused were detailed by eye-witnesses, and therefore, in the absence of a request, it was not error to omit to charge the jury the rule as to circumstantial evidence, embodied in section 1010 of the Penal Code.

2. Permission to ask leading questions is a matter peculiarly addressed to the discretion of the trial judge, and the exercise of this discretion will not be interfered with unless it is abused. It is not made to appear that there was an abuse of this discretion in 'the present case.

3. The court charged the jury that “the reasonable doubt of the law is one that grows out of the testimony, and leaves the reasonable mind wavering and unsettled, not satisfied from the evidence. A juror can not create for himself a doubt and act upon it. He can not raise an artificial or captious doubt in order to acquit. The doubt should be real and honestly and firmly entertained, after all reasonable efforts to find out the facts. It should be reasonable and not a mere vague conjecture, or possibility of the innocence of the accused.” These instructions were not subject to the exception that they were prejudicial to the accused for the reason that they “limited the jury to a doubt arising out of the law, and not the evidence, and took away the right of the jury to consider a doubt growing out of the case.”

4. The charge of the court in its entirety fairly and fully presented the issues of law and fact. The evidence authorized the verdict and there was no error in refusing a new trial. Judgment affirmed.  