
    STONEHAM v. STATE.
    (No. 8580.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1925.)
    1. Constitutional law <§=»3II — Intoxicating liquors <&wkey;l9 — Jury <&wkey;34(2)— Act making possession of certain quantity of liquor prfma facie evidence of possession for sale held valid.
    Dean Act, § 2e, as added by Acts 38th Leg. (1923) 2d Called Sess. c. 22, providing that proof of possession of intoxicating liquor of more than certain quantity shall be prima facie evidence of possession for sale, being within power of Legislature in exercise of right to change rules of evidence within proper limits, is not violative of Bill of Rights, §§ 10, 15, 19.
    2. Criminal law -<&wkey;l088(2), 1056(1) — Where no exceptions taken to charge for failure to explain meaning of term nor instruction requested, error cannot be predicated.
    In prosecution for possessing intoxicating liquors for purpose of sale, in violation of Dean Act, § 2e, as added by Acts 38th Leg. (1923) 2d Called Sess. c. 22, providing that proof of possession of intoxicating liquor of more than certain quantity shall be prima facie evidence of possession for sale, where no exception was taken to charge because of omission of instruction explaining meaning of term “px-ima facie evidence,” nor such instruction requested, defendant cannot assign error.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    W. F. Stoneham was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    Frank Williford, Jr.,' of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Possession of intoxicating liquor for the purpose of sale is the offense ; punishment fixed at confinement in the penitentiary for one year.

There was found upon the premises of the appellant a quantity of intoxicating liquor. The theory of the defense that the possession was for medicinal purposes was presented to the jury.

An exception was reserved to the-charge of the court upon the ground that it embraced an instruction that under the law the possession of more than one quart of intoxicating liquors is prima facie evidence of guilt, but that the defendant was entitled to-introduce evidence showing that he had the-intoxicants in his possession for a legal purpose. The validity of the statute (Dean Act)upon which this charge is based, namely, section 2e, as added by chapter 22, Acts of the 38th Leg., 2d Called Session, is challenged upon the ground that it offends against several provisions of the Constitution, among them being section 19, art. 1, and section 10, art. 1 of the Bill of Rights,, and section 15, art. 1, of the state Constitution. The validity of the. statute was upheld in the case of Newton v. State (No. 8459) 267 S. W. 272, not yet [officially] reported. For the reasons given in the opinion in that case the present contention must be overruled. The cases of Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794, and O’Brien v. State, 90 Tex. Cr. R. 276, 234 S. W. 668, to which reference is made in the Newton Case, supra, are analogous.

In the present case, the right of the accused until his guilt is established by legal evidence beyond a reasonable doubt was carefully guarded, and in addition thereto, the jury was informed that the burden of proof was upon the state.

The meaning of the term “prima facie” evidence was considered by the court and quotations given from the decisions of other states interpreting that phrase in Floeck’s Case, supra. The reasoning of the court and the citation of authority is condensed in the syllabus in these words:

“ ‘Prima facie’ evidence is merely proof of the ease upon which the jury may find a verdict, unless rebutted by other evidence. In other words, pi-ima facie evidence is not conclusive, but such as may be overcome by evidence to the contrary; and such evidence is to be weighed together with the other evidence, and in connection with the reasonable doubt and presumption of innocence which obtain is all criminal trials.”

See,’ also, 3 Words and Phrases, Second Series, p. 1174; State v. Adams, 22 Idaho, 485, 126 P. 401; Chaffee v. United States, 18 Wall. 516, 21 L. Ed. 908, and annotations-in Rose’s Notes on U. S. Rep. (Revised Ed.) vol. 8, p. 317. Thus interpreted and applied, such statutes have often been held valid. See State v. Lapointe (N. H.) 123 A. 692, 31 A. L. R. p. 1212, and notes page 1222.

In the present instance there was no> exception to the charge because of the omission of an instruction explaining the meaning of the term “prima facie” evidence, nor was such instruction requested. Had such instruction been desired by appellant, doubtless it would have been given.

There is no legal ground presented for a reversal of the judgment. It is therefore affirmed.. 
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