On a former day of the term the judgment herein was affirmed. The motion for rehearing brings in review only the sufficiency of the evidence to support the conviction. The punishment was $500 and one hundred and twenty days in jail. On account of the punishment and the insistence of appellant that *Page 517 the evidence is not sufficient, we have given this case a careful revision from the viewpoint now presented by appellant.
The question presented with reference to want of sufficient evidence is the identity of the attacking party. The assault occurred at night somewhere between 12:15 and 12:45. Appellant introduced evidence of an alibi. This was sufficient had the jury believed it to have authorized an acquittal. It is not the purpose of this opinion to review the testimony bearing uponalibi. The conviction depends upon the sufficiency of the testimony to identify appellant as the attacking party. If this is sufficient this court would not feel justified in reversing. Where there are two fact theories, one which justified the verdict, and the other upon which the jury could have acquitted, it is the exclusive duty of the jury to decide. In view of that rule and under the contention of appellant some of the pertinent testimony will be collated.
There had been trouble between appellant and the assaulted party at a little station called Gunter on the train enroute from Fort Worth to Sherman. Both men were railroad employees. Appellant, was not an employee on that particular train, but the assaulted party Stepp was. Quoting from Stepp's testimony, after narrating the trouble, he says:
"We came on to Sherman and I do not know whether the defendant came on that train, I did not see him any more. We got to Sherman about 7:30 A.M., on the morning of the 16th of July and I did not see the defendant during that day. It was along about 12:30 on the morning of the 17th when I next saw him as near as I remember and that was just before he struck me in the back of the head. That was at the round house in Sherman, Grayson County, Texas. I was oiling the engine around, preparing the engine for the trip. I had oiled the right side and came around on the left side of the engine, that is the fireman side of the engine to oil that side and I was oiling the eccentric there and I heard some little noise behind me. I didn't know what it was but any way I looked back over my shoulder like and kind of turned my shoulder a little bit and he struck me over the right ear. He didn't get a very good lick from that but enough to kind of stun me, to knock me out of balance. And the next lick I got was on top of the head with some kind of blunt instrument, I couldn't see what it was exactly, looked more like brake club or coupling pin — that is the last thing I remember of that night. In oiling the engine we have an oil can in the right hand, if the man is right-handed, and a big torch in the left hand for light. I am right-handed and at that time I had the oil can in my right hand and the torch in my left hand. The torch is made of tin and so big around at the bottom and kind of funnel shaped. It is about twelve inches around at the bottom and about four inches at the top with a spout for a wick that contains oil, coal oil to make a light. The torch has a handle to hold to and makes a light about the size of a man's head, makes a very good *Page 518 light if you have got oil in it. I had a good light, a very good torch at that time, a man could see how to read orders by that torch any time at night. At the time I turned around and saw the defendant on my left I had the torch and it gave me light enough to see the defendant, and there was also an arc light there too that also gives light. The defendant was dressed the best I remember, he had on a black hat and had on a kind of blue overalls, it looked like, if I am not mistaken, his working clothes. The first lick that he struck me was over the right ear, there is a scar there and there is one on top of my head too, you can feel it, besides that one in my forehead. The first blow back of my head, was more of a glancing lick than a direct blow — I kind of ducked my head. The first blow knocked me down partly and staggered me. It was a very little while after that first blow until I was staggering that I was struck another blow on top of the head and there is a very long scar up there, about six inches. . . . I couldn't say that I was angry with the man after the trouble was over at Gunter but I did not see the man any more until the morning of the 17th about 12:30 o'clock as near as I remember. I have no means at all of guessing the time of day as twelve o'clock only we are called for 12:45 and 118 is due here at 12:15 and I was just talking to the engineer as he came in on the 118. I could not say whether 118 came in on time that night or whether it was five or ten minutes late. . . . I know that this is the man who struck me, I could not be mistaken about it." This witness stated he had not told anybody until the day before he was testifying as to who it was that struck him. Up to that time he denied knowing who it was; that he first told Mr. Gafford that he knew appellant was the man who struck him. Further testifying he states: "At that time I heard the noise and looked around the best I remember the party was about three feet from me, three or four feet, I couldn't say the exact distance. I was facing north and he was south of me, as nearly due south as I could state. I was oiling the engine and was standing you might say erect. I was oiling the eccentric. I was not oiling any one thing when I heard this noise but I was generally oiling the engine. I was actually emptying oil from my oil can on some part of the engine when I heard the noise. My lamp was in my left hand. I could not say how far the lamp was from the point of the engine that I was oiling, it was over two feet, it might have been closer, that is very hard to say exactly the distance a hand would hold a lamp from the engine. As to how long it was after I glanced backward before the blow was struck I will say that it was just immediately, I looked around and the blow was struck. In other words the act of glancing backward and the receipt of the blow on the right side of my head was about at the same instant, and as I saw the blow coming I ducked my head like that and caught the blow right over the right arm. I seen him as I looked over my shoulder and I ducked my head just about the same time or just immediately afterwards. In other *Page 519 words, at the time I heard the disturbance the blow was in motion and was in the act of falling upon my head but had not quite reached my head at that time, as I saw him. . . . At the time I saw the man who was making this blow he had already begun the stroke and I saw him just a moment before it hit. I saw the man who hit me and the blow was in motion. That is the answer I gave you a while ago. I am not a bit in the world mistaken about that. The best I remember the man had on a black hat. He had on a black hat, a medium size hat, as to whether it was a derby, a stiff hat or soft hat, I did not examine it and I could not say whether it was stiff, soft or what it was. It was not a straw hat."
On the identification of the defendant this is, in the main, the evidence. There was no question of the fact that Stepp was assaulted by some one, and that his skull was fractured and he was rendered unconscious until perhaps in October; at least a considerable length of time. If this evidence is sufficient to identify appellant as the assaulting party the judgment should be affirmed, so far as that question is concerned. The witness is positive as to the identity of the defendant. The jury believed Stepp's testimony as to the identity of the appellant as the assaulting party. With this evidence in the record we would not feel justified in saying the jury was not authorized to disbelieve appellant's alibi. Appellant introduced evidence which if believed by the jury would have tended to show that he was at a different place. He claimed he was at the depot something like three quarters of a mile from the place of assault at such time as he could not have been at the round house and committed the assault. The time fixed is largely a matter of deduction drawn from circumstances and incidents upon which the witnesses base their conclusion. This was all before the jury. We are of opinion that as this case is presented we would not be justified in reversing on the question submitted and discussed.
The motion for rehearing will, therefore, be overruled.
Overruled.