*529ON MOTION FOR REHEARING.
BEAUCHAMP, Judge.In his motion for rehearing, appellant presents a forceful argument on the weight to be given the evidence in the case which in all probability was presented to the jury with equal skill and emphasis.
The original opinion appropriately describes the nature of this case and the writer has been similarly impressed. Good men seem to have differed in their conclusions as to the condition of appellant. Some base the conclusion on the lack of evidence and some on very scant evidence, affirmatively told. If it were the duty of this-court to decide questions of fact, we feel that we would be confronted with difficulty. However, this is not our responsibility.
Appellant presents a number of cases sustaining the proposition of law that where the evidence is equally consistent with the guilt or innocence of the party on trial, it will be held to be insufficient to sustain the conviction. Referring to Brown v. State 300 S. W. 81, the proposition of law is sound but does not apply to the facts of this case where a number of credible 'witnesses testified positively to facts indicating that the party was under the influence of intoxicating liquor and at the same time an equal number of credible witnesses took an opposite view, which seemed to have been justified from their observation. The Brown case would be appropriate had all the witnesses testified to similar facts which may be viewed as being consistent with the party’s innocence as fully as such undisputed facts would be with his guilt. In that event the jury would not be warranted in returning a verdict of guilty. We think, too, that the diligent counsel presenting appellant’s motion may have the wrong view about the degree of intoxication which may be considered sufficient to constitute a violation of the law involved. Our examination of the record discloses evidence amply sufficient to support the conviction, and we quote briefly from the following:
Childers, the barber whose building was damaged, said that appellant told him at the time that he had consumed about a half pint of liquor shortly before the accident. Roy Matthews quoted appellant as making a similar statement. Thomas L. Blanton, Jr., county attorney, testified that he talked with the defendant in the sheriff’s office but did not say how long after. We quote this testimony: “The defendant talked thick tongued and staggered a little. The defendant looked like he was under *530the influence of liquor. I smelled liquor on defendant’s breath at the time. We got a pint bottle of liquor out of defendant’s car, the car he was driving at the time, got it out of the glove box in said car. It had about half of the liquor gone out of it. It was still about half full of liquor. Defendant told me that he bought the bottle of liquor this side of the river.”
The record does not disclose how far Albany was from the river but probably that was a matter so familiar to the jury that neither side considered proof necessary.
J. C. Miller went to the scene of the accident with the county attorney and testified relative thereto: “I did not smell any liquor on defendant’s breath that day. I was not very close to him. He looked and acted like he was under the influence of intoxicating liquor.”
John Hightowe'r, deputy sheriff, went to the scene of the accident and on this issue testified as follows: “I did not notice the defendant staggering at that time, but I did think the defendant talked a little thick tongued and I could smell liquor on his breath.”
We adhere to the original opinion and the motion for rehearing is overruled.