
    WALDEN v. STATE.
    (No. 8776.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.)
    1. Intoxicating liquors <&wkey;238(4) — Purpose of possessing more than one quart of whisky should have been submitted to the jury.
    In prosecution for possessing half gallon of whisky for sale, issue whether possession was for purpose of sale should have been submitted to jury, notwithstanding Acts 38th Leg. (2d Called Sess.) c. 22, § 2e, declaring possession of more than one quart of liquor prima facie evidence of guilt.
    2. Intoxicating liquors ><&wkey;236(7) —* “Prima facie, evidence,” as used in statute, making possession of more than one quart of liquor prima facie evidence of guilt, defined*.
    “Prima facie evidence,” within Acts 38th Leg. (2d Called Sess. c. 22), § 2e, declaring possession of more than one quart of liquor prima facie evidence of guilt, is merely proof of case upon which jury may find verdict, unless rebutted by other evidence, and is not conclusive.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Prima Facie Evidence.]
    3. Criminal law <§==3778(2) — Accused held entitled to charge that burden was on state to prove possession of liquor for purpose of sale.
    In prosecution for possessing half gallon of whisky for.purpose of sale, accused was entitled to charge that burden was on state to prove beyond reasonable doubt that he was in possession for purpose of sale, and, while court might charge that prima facie this burden was discharged by proof of possession of more than one quart of liquor, charge defining prima facie evidence should have been given.
    Appeal from District Court, Howard County; W. P. Leslie, Judge.
    Lem Walden was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Jno. B. Littler, of . Big Springs, and B. W. Baker, of Carthage, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at' confinement in the penitentiary for a period of one year.

The state’s testimony is to the effect that the appellant and two others were seen in an automobile in which there was found a fruit jar containing a half gallon of whisky and some other containers, which the circumstances revealed had contained whisky.

The appellant’s explanation of the transaction is in substance this: Without any whisky in his car, he stopped it on the street after paying a visit to his aunt. It was near a restaurant and a garage. Leaving' his car, he went into Meyers’ restaurant and had a conversation with a relative. ' Meyers was drunk, and his wife asked the appellant to take him out. Appellant and Meyers went to the car; Upon reaching it, another man appeared and asked to ride with them out to a farm about 3 miles distant. The man said he had a bundle that he wanted to take with him. Appellant consented that he should ride. The man went away, and upon his return had the bundle with him, and asked Meyers if he drank. Meyers replied that he did. The jar was then produced, and a drink taken from it by each member of the party. Appellant got out of the car to go on an errand. Upon his return to the car, he found the officers in possession of it. He disclaimed any other connection with the whis-ky or the ownership of it.

■ In its charge, the court instructed the jury thus:

“If you find and believe from the evidence in this case, beyond a reasonable doubt, that on or about December 9, 1923, in Howard county, Tex., the defendant,' Lem Walden, knowingly had in his possession more than one quart of whisky, then you will find him guilty.”

The court also instructed the jury that, if the whisky in, quest ion was placed in the car of the appellant by another, and the appellant had no interest in it, or if upon that subject they had a reasonable doubt, they should acquit him.

There is no phase of the charge which submitted to the jury the question as to whether the whisky was possessed for the purpose of sale, but the learned trial judge proceeded upon the theory that the possession of more than a quart of whisky was conclusive proof of guilt. The indictment in the present case properly charged the offense, namely, the “unlawful possession of intoxicating liquor for the purpose of sale,” but it is also necessary that the purpose for which it is possessed be submitted to the jury.

From Petit’s Case, 90 Tex. Cr. R. 336, 235 S. W. 579, we quote:

“There can be no question but that an indictment for the offense as now defined, must charge that such possession ‘was for the purpose of sale,’ and that the question of the purpose of such possession must be submitted to the jury in the charge of the court.”

We also quote from Veasey’s Case, 97 Tex. Cr. R. 299, 260 S. W. 1055, the following:

.“The learned trial judge apparently misapprehended the phase of the statute under which the prosecution is made. The offense denounced is ‘the possession of intoxicating liquor for the purpose of sale.’ The burden rested upon the state to prove, not only the possession, but that the possession was for the purpose of sale. The appellant might' have had liquor for use as beverage, but such possession would not have been within the provision of the state statute.”

In the present case the learned trial judge apparently misconceived the effect of section 2e, c. 22, Acts 38th Leg. 2d Galled Sess., in which it is declared that the possession of more than a quart of intoxicating liquor shall be prima facie evidence of guilt. The validity of that statute has been upheld by this court upon the express ground that it did not reflect the purpose of the Legislature to declare that the possession of more than a quart of liquor was absolute or conclusive proof, of guilt, but that it was prima facie evidence. Of such evidence it was said in Floeck’s Case, 34 Tex. Cr. R. 314, 30 S. W. 794:

“ ‘Prima facie’ evidence is merely proof of a case upon which the jury may find a verdict, unless rebutted by other evidence. In other words, prima 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 in all criminal trials.”

See Stoneham v. State (Tex. Cr. App.) 268 S. W. 156; Newton v. State (Tex. Cr. App.) 267 S. W. 272. Explanatory of the principle upon which the legislative declaration that a given fact shall be prima facie evidence has been upheld, a. review of the judicial decisions will be found in the annotation of North Carolina v. Barrett, 138 N. C. 630, 50 S. E. 506, 1 L. R. A. (N. S.) 626, from which a quotation will be found in Newton’s Case, supra, a part of which is in this language:

“But statutes which undertake to make evidence of certain facts absolute or conclusive proof of guilt are unconstitutional; those, however, which merely declare statutory presumptions affecting the burden of proof are valid.”

A like announcement is to be found in the case of the State of New Hampshire v. Lapointe, 81 N. H. 227, 123 A. 692, 31 A. L. R. 1212.

The application of this principle was made in Floeck’s Case, supra.

In the present case, it was the right of the accused to have the jury understand, through the charge of the court, that the burden was upon the state to prove beyond a reasonable doubt that the appellant was in possession of intoxicating liquor for the purpose of sale. It was proper for the court to instruct the jury that prima facie the discharge of this burdén was made by the proof, beyond a reasonable doubt, that the accused was in possession of more than a quart of intoxicating liquor. They should have been further informed, however (upon exception to the charge) of the meaning, in substance, of prima facie evidence as defined in Floeck’s Case, supra.

The record contains a number of bills of -exception, but, in the absence of surrounding facts illustrating the circumstances under ■which the rulings complained of were made, the bills are insufficient to overcome the presumption indulged on appeal that the trial court correctly ruled upon the admission and rejection of évidence.

Eor the reasons stated, the judgment is ¡reversed, and the cause remanded. 
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