Appellant insists in his motion that the testimony for the State is insufficient to show his guilt beyond a reasonable doubt, and he persuasively sets out the testimony of a number of witnesses for the defense.
There are two questions involved in a prosecution of this kind, one of them being the question of the intoxication of the accused, and the other the question of whether he drove an automobile upon a public road at the time alleged. Examining carefully the testimony of the defense witnesses, we note that they denied with equal strenuousness and force the existence of both these elements of the offense. The testimony appears *Page 105 very conclusive of the fact that appellant was drunk at the time mentioned, and there is no question but that he was in the car, which was driven on a public highway, and under the wheel when two disinterested witnesses, who were but a short distance away, heard the crash when the car left the road, and, as both testified, ran immediately to the scene, and they not only found appellant in the car but the doors of the car were jammed and were opened with difficulty. We think the jury justified in concluding that if the appellant's son had been driving the car at the time of the crash, he could not have gotten out of the car and run back out of the sight of the State witnesses who were coming to the scene on the run so as that said State witnesses should testify that they saw no person leave the car. These two State witnesses were one hundred or one hundred and twenty-five yards at most away from where the car of appellant was driven off the road; they heard the crash; they ran down there at once and found no one at the car but appellant. The reconciliation of conflicting theories in the testimony is primarily for the jury, and we hesitate to reverse unless the evidence is so much one way as to indicate a disregard for the proper disposition of the case.
The motion for rehearing is overruled.
Overruled.