One accused of crime may testify, article 710, C. C. P. The jury, or the court below, if trial be had before the judge without a jury, may refuse to accept the truth of the appellant's testimony. Mason v. State, 85 Tex. Crim. 254; Wilson v. State, 92 Tex.Crim. Rep.; Hays v. State, 98 Tex.Crim. Rep.; Payne v. State, 100 Tex. Crim. 241.
No witness asserted that the pistol had by appellant in this case, at 3 A. M. the night he burglarized a postoffice, was the one shown by testimony to have been gotten from Mr. Cobb, — save the testimony of appellant himself. It would at once appear unlikely that one embarking on a criminal enterprise of such magnitude as robbery of a postoffice would arm himself with a pistol which would not shoot. There being no controversy over the fact that appellant did have a pistol on his person at 3 o'clock on the night in question, we are unable to bring ourselves to believe that the court was not within his discretion in declining to accept the defensive theory that said pistol was a broken one belonging to Cobb. Appellant's motion is well prepared, logical and courteous in its tone. We regret that we are not able to accede to its request.
The motion for rehearing is overruled.
Overruled. *Page 249