
    DAVIS v. STATE.
    (No. 10122.)
    (Court of Criminal Appeals of Texas.
    June 23, 1926.
    Rehearing Granted Oct. 20, 1926.)
    On Motion for Rehearing.
    I. Intoxicating liquors <&wkey;239(l2).
    Instruction defining offense of unlawful possession of liquor for purpose of sale, that possession of intoxicating liquor is unlawful, and refusal to instruct that it must be possessed for purpose of sale, held error, in view of Pen. Code 1925, art. 666. *
    
    
      ■ 2. Criminal law <&wkey;l099(7).
    Error in charge authorizing conviction upon proof of facts which -did not constitute an offense could be considered on appeal, though statement of facts was not filed within time prescribed by Code Cr. Proe. 1925, art. 760, subd. 5, but was filed within time allowed by order of court.
    Appeal from 'District Court, Hunt County; J. M. Melson, Judge.
    Bob Davis was convicted of the unlawful possession of intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the’State.
   BERRX, J.

The offense is the unlawful possession of intoxicating liquor, and the punishment is two years in the penitentiary.

The notice of appeal was given on the 31st day of October, 1925, and the statement of facts was not filed until February 22, 1926, or more than 90 days after the date of the notice of appeal. Under the plain terms of the statutes we are precluded from considering a statement of facts filed more than 90 days after the notice of appeal is given. Section 5, art. 760, 1925 Revision C. C. P.

There are no bills of exceptions preserved in the record, and, in the absence of a statement of facts, no -error is shown.

Finding no error in the record, the judgment is in all things affirmed.

PER CURIAM. The foregoing opinion of the' Commission 0f Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The conviction was for the unlawful possession of intoxicating liquor for the purpose of sale. In submitting the matter to the jury, the court denned the offense thus:

“Our statutes provide that it shall be unlawful for any person in this state to possess intoxicating liquor. Whisky is intoxicating liquor.”

In no other part of the charge is the offense defined, and the court declined to amend his charge in response to objection and exception properly presented challenging the sufficiency and accuracy of the definition of the offense. In a special charge, the court was requested to inform the jury that there could be no conviction unless they believed from the evidence, beyond a reasonable doubt, that the appellant possessed the intoxicating liquor for the purpose of sale. This was refused, and the ruling is properly-brought forward for review.

It is not an offense to possess intoxicating liquor unless it be possessed for the purpose of sale. This is the express language of the statute, article 666, P. 0. 1925. In numerous, cases the announcement has been made that in prosecutions for the present offense it is essential that the evidence show that the liquor in question was possessed for the purpose of sale, and that the jury be so instructed. See Petit v. State, 90 Tex. Cr. R. 330, 235 S. W. 579, and numerous other cases collated in Vernon’s Tex. Crim. Stat. 1925 (Pen. Codo) vol. 1, p. 435, note 7.

It is a general rule that an error in the charge brought up by a bill of exceptions will not authorize a reversal unless the facts developed upon the trial are before the appellate court. To such rule there is the following exception:

“But this court will revise the charge of the court in a felony case when such charge is not warranted by the indictment, and when, under any state of evidence, it would be manifestly erroneous, and may have prejudiced the rights of the accused. Mitchell v. State, 2 Tex. App. 404.”

The application of this exception to the general rule resulted in a reversal of the judgment of the case of Brown v. State, 16 Tex. App. 198. The operation of the rule in a proper case has often been recognized. See Wilson v. State, 52 Tex. Cr. R. 173, 105 S. W. 1026; Bryant v. State, 35 Tex. Cr. R. 394; Shrewder v. State, 62 Tex. Cr. R. 403, 136 S. W. 461, 1200.

The charge in the present case not conforming either to the indictment or to the statute -and authorizing a conviction of the appellant upon proof of facts which do not constitute an offense, the error complained of is one of which this court is compelled to take notice, notwithstanding the statement of facts w£\s not filed within the time prescribed by law, but was filed within the time allowed by order of the court.

For the error pointed out, the rehearing is granted, the judgment of affirmance is set aside, the judgment of the trial court is reversed, and the cause is remanded. 
      <S=»For other oases see same topic and KEY-NÜMBER in ail Key-Numbered Digests and Indexes
     