In his motion for rehearing appellant again urges that the evidence is insufficient. We have carefully reviewed the testimony and still find ourselves unable to take appellant's view of it. The record presents a case such as frequently reaches this court where defensive evidence, if accepted by the jury, would support a finding against the state, but where the evidence is conflicting and the jury may properly adopt either of two theories, both being supported by the evidence, we would be unauthorized to invade the province of the jury in determining an issue of fact.
One ground of the motion for rehearing is that it appears from the former opinion that one reason for affirming the judgment was because appellant did not testify. In reciting what is disclosed by the record we frequently say in our opinions that appellant offered no testimony or that appellant did not testify, but such expressions are not to be taken as indicating that this court considered the fact of appellant's failure to testify as a circumstance against him.
The motion for rehearing is overruled.
Overruled. *Page 51