Appellant in a very earnest and forceful motion insists that the State's witness, upon whose testimony the conviction rests, was unworthy of belief. There is no bill of exceptions complaining of the admission of evidence nor of the manner in which the issues were submitted to the jury. The State's witness testified to facts, which, if true, constitute an offense. Appellant testified to a state of facts, which, if believed, would have exculpated him. *Page 64
This court has never assumed the right, where the evidence is sufficient, if believed, but conflicting, to set aside the verdict because the judges might, if they had been upon the jury, believed the evidence of one witness and disbelieved that of another. The contrary view has been taken by this court throughout its history, and by the Supreme Court when it had jurisdiction of criminal matters. Shaw v. State, 27 Tex. 750; Lockhart v. State, 3 Texas Crim. App., 567; O'Connor v. State,37 Tex. Crim. 267; Turner v. State, 37 Tex.Crim. Rep., and numerous cases listed in White's C.C.P., p. 601, sec. 942. In fact, the Code of Criminal Procedure, in terms, provides that "The jury, in all cases, are exclusive judges of the facts proved, and of the weight to be given to the testimony." To the same effect is article 734, as follows: "The jury are the exclusive judges of the facts in every criminal case." Later expressions of the court will be found in Vernon's C.C.P., p. 689, note 15.
The motion for rehearing is overruled.
Overruled.