¶1ON MOTION FOR REHEARING.
¶2We have again reviewed the record in the light of the motion for rehearing and oral argument thereon. There is no doubt in our mind that the facts furnished probable cause for the search of the car.
¶3The other point stressed is that appellant’s identity as the driver of the car is in doubt under the facts. Such insistence is based on the claim that Helms (the owner of the car) and appellant were similar in appearance, and that the state’s witness was mistaken in identifying appellant as the driver. The state’s witness, an officer, testified on direct examination, “I know Tom Boyd, the defendant in this case. … I saw him driving a car. … I had occasion to follow him. … He was driving an Oakland coach.” On cross-examination, “I am not mistaken in this man. I am positive I am not mistaken. I could not be mistaken, because I have arrested him before.”
¶4After appellant had introduced evidence on the issue of alibi, and evidence to the effect that appellant and Helms resembled each other, he called as a witness Johnny Crow who knew both of the parties. On direct examination the witness said Helms would weigh about 170 pounds, “was sandy-haired or red-headed.” On cross-examination he testified, “I have described the man I sold that car to (referring to Helms). I see that man there (appellant). I think I could tell them apart. I don’t think I would have any trouble telling them apart. I think I could tell them apart across this court room. … I would have no trouble in distinguishing that man and this man here at any distance that I could see them.” On re-direct examination he said, “Helms was not as red-headed as this man, but he was light-headed, more light-headed than this man. The main difference is in the height; he is not as tall, and is heavier.”
¶5In view of the evidence on controverted issues this court would not be warranted in disturbing the verdict of the jury which settled the issues in favor of the state.
¶6The motion for rehearing is overruled.
¶7Overruled.