
    Daniel Martinez v. The State.
    No. 5197.
    Decided November 20, 1918.
    Rehearing denied January 15, 1919.
    Local Option—Statement of Facts—Fractice on Appeal.
    In the absence of a statement of facts and bills of exception, the suggestion that the judgment is contrary to "law and the evidence, can not be considered; however, the statement of facts, having been left out of the record "by inadvertence and was afterwards supplied, it is now here considered, and while the evidence was somewhat contradictory, it is, nevertheless, sufficient to sustain the conviction, and the judgment is affirmed and the motion for rehearing is overruled.
    Appeal from the District Court of El Paso. Tried below before the Hon. W. D. Howe.
    Appeal from a conviction of a violation of thé local option law; penalty, two years and six months imprisonment in the penitentiary.
    The opinion states the case.
    
      J. B. Larrazola and P. E. Gardner, for appellant.
    On question of insufficiency of the evidence: State v. Webb, 41 Texas, 67; Owens v. State, 35 id., 361; Carter v. State, 75 Texas Crim. Rep., 110, 170 S. W. Rep., 739.
    
      
      E. B. Hendricks, Assistant Attorney General, for the State.
   PRENDERGAST, Judge.

This is an appeal from a conviction for violation of the prohibition law. There is neither a statement of facts nor a bill of exceptions. The only question suggested in the motion for new trial is that the judgment is contrary to the law and the evidence, which, of course, can not be considered in the absence of a statement of facts.

The judgment is affirmed.

Affirmed.

ON REHEARING.

January 15, 1919.

LATTIMORE, Judge.

This case is before the court on appellant’s application for rehearing.

At a former time the case was affirmed, the only complaint being that the evidence was insufficient to support the verdict, and there being then on file no statement of facts or bills of exception, as shown by the opinion of the court.

In connection with this motion, for rehearing, appellant files a sworn statement from the cleric of the District Court at El Paso that a statement of facts was filed with him in time, and that it was his neglect in failing to send the same up to this court. The statement of facts is now on file in this court and has been duly considered before rendering this opinion.

As stated in the original opinion, the only contention of appellant is that the evidence is insufficient to support the conviction. Two witnesses testified positively to appellant’s guilt. The testimony of one of them was attacked, and to some extent contradicted, by testimony introduced by the appellant. The evidence of the other witness is pointed and positive as to appellant’s guilt, and this witness is in nowise impeached or contradicted except by the statement made by appellant’s wife.

The question of the credibility of the witnesses is for the jury, and that issue having been decided in favor of the State, we do not feel that there is anything to show prejudice on the part of the jury or that they acted without due regard for the appellant’s rights.

The motion is overruled.

Overruled.  