Appellant again urges that this case should have been reversed because the trial court refused his motion for an instructed verdict, said motion being presented at the close of the state's testimony. We know of no rule either of statute or decision which makes it obligatory upon the court, in the first instance, to pass upon the sufficiency of the testimony. Our statute puts the burden of passing upon the facts proven and the credibility of the witnesses upon the jury. If appellant felt satisfied that the state had not made out its case, and desired a decision upon the testimony originally offered by the state, he had the right to rest his case and have it then decided, and could have sought a new trial in the court below or on appeal on the sufficiency of the testimony.
We have again reviewed the record, having in mind appellant's complaint at the holding that he was sufficiently shown to be a principal offender. It being admitted that W. L. Wilkerson transported the liquor in question enough to make his act a violation of the law, we find in appellant's own testimony the admission that the whiskey was his, that he had it put at the place where it was when Wilkerson took it into his manual possession at the time of transportation, that he drove to said point in his car, intending to get the whiskey and carry it on to his home, that he sat in the car with its motor running while Wilkerson got out of said car and went to the place where the whiskey was and picked it up and started back to the car with same. The proposition seems so plain that the testimony of appellant supplied every necessary element in establishing the fact that he was thus present, acting with Wilkerson with a common intent and purpose, as to leave no doubt of the propriety of the conclusion that he was a principal as found by the jury.
Being unable to agree with appellant's contention, the motion for rehearing will be overruled.
Overruled.