Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.
There is some complaint of the fact that the date of the alleged sale as proven was different from that laid in the indictment, but there being no question but that if the sale was proven on the prior date, it was within the period of limitation, the matter is of no materiality.
The chief contention here is that the main State witness was not worthy of belief. We have carefully considered his testimony and *Page 264 that of the defense attacking it. There is no question but that the witness affirmed upon this trial, as he had upon previous occasions, that he bought the whisky from the appellant at a time well within the period of limitation. There seems to have been some confusion in the dates as fixed by the witness, and his reasons for this confusion are in the record. Under our statute where there is positive evidence of guilt and the only question is one of credibility of the State witness, this court is very loath to override the statute or take away from the jury right given them by law to pass on the credibility of witnesses and the weight of their testimony. We are not willing in this case to hold that the jury who tried the case and the trial court who heard and saw the witnesses, both exceeded their discretion and authority in accepting the testimony of the State witness. Foster v. State, 12 S.W.2d 574; Jacobs v. State, 208 S.W. Rep. 917.
Not being in accord with the contentions of appellant, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.