The only ground of the reversal ordered in the original opinion in this case was that newly discovered evidence, set out in the motion for new trial, cast serious doubt upon the identity of appellant as the party observed by the officers indulging in suspicious movements following a whisky raid made by said officers in which it was claimed sufficient testimony came to light to justify the conviction of appellant for transporting intoxicating liquor. When the matter came before this court upon the State's motion for rehearing, the ground upon which same was granted was that when the motion for new trial came before the lower court appellant, — who had prior thereto not taken the witness stand, — did then testify, and that having done so, knowing that the sharp issue in the case was the identity of the party above referred to, — then wholly failed to claim or state that he was not the party seen by the officers directly after the raid aforesaid. The trial court upon hearing the motion decided it against appellant. The judge had the right to give much weight to the failure of appellant to deny being the party so acting suspiciously, as above referred to. Said judge doubtless did attach much weight to this circumstance. We must adhere to the correctness of the rulings of trial courts unless it be clearly shown that same are wrong or in abuse of the discretion of the court below. In so holding we but follow precedents numerous and well considered. We see no reason for changing the views expressed in the judgment of affirmance.
Appellant's motion for rehearing will be overruled.
Overruled. *Page 612