
    CARLISLE v. STATE.
    (No. 9822.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.
    Rehearing Denied March 3, 1926.)
    1. Intoxicating liquors &wkey;>236(7) — Possession of more than one quart was prima facie evidence of possession for sale, subject to be overcome by evidence (Acts 38th Leg. [1923] 2d Called Sess. c. 22, § B).
    In prosecution for possession of intoxicating liquor for purpose of sale, where quantity of “choc beer” was found on defendant’s premises containing 2.38 per cent, of alcohol by volume, instruction based on Acts 38th Leg. (1923)' 2d Called Sess. c. 22, § B, that possession of more than one quart of liquor was prima facie evidence of guilt, which could, however, be overcome by evidence showing legality of possession, helé proper.
    On Motion for Rehearing.
    2. Intoxicating liquors <®=»236(7).
    Evidence helé sufficient to show that quantity of “choc beer” was possessed for purpose of sale.
    Commissioners’ Decision.
    Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
    J. P. Carlisle was convicted of possession of intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    Gibson & Lovett, of Corsicana, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment is one year in the penitentiary.

Appellant urged some exceptions to the court’s charge, and we think these are without merit. His main criticism was leveled at that portion of the court’s charge which submitted the statute with reference to the possession of more than a quart of liquor. We think the" charge as submitted conforms to the authorities. In fact it seems to follow the ruling of this court in the ease of Caldwell v. State (Tex. Cr. App.) 273 S. W. 608, and the authorities there cited.

There are no other bills of exceptions contained in the record, and a consideration of the statement of facts convinces us that the evidence is entirely sufficient to support the verdict.

It is accordingly ordered that the judgment be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of 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.

Upon a search of the appellant’s premises where he, his wife and son resided, there was found a quantity of liquid denominated as “choc beer.” Appellant’s home and store were in the same building or near together, and back of the store and under the same roof was a small building in which the liquid mentioned was found. In addition to the liquid, there were a number of empty bottles and equipment for capping them, also some of the liquid in bottles, some in bulk, and much in cases. According to the state’s testimony, the appellant was standing at the door of the room in which the articles mentioned were found. A short time after the discovery, Marvin Car-lisle, son of the appellant, appeared.

It seems that Marvin Carlisle was also indicted and had been previously tried. According to the testimony of the state, appellant admitted that the beer belonged to him. He further said that he did not sell it at retail, though he had formerly done so, but that he sold it at wholesale; that he had sold 10 cases, and, if the officers had been 30 minutes later, that which he had on hand would have been gone.' From the same source testimony was introduced that appellant had offered the officers $100 to permit him to escape.

The liquid contained 2.38 per cent, of alcohol by volume. According to the testimony of the appellant and his wife, the presence of the liquid upon the premises was not known to them until a very short time before the appellant was arrested. According to his wife, during the absence of the appellant on an errand, she discovered that her son was engaged in bottling beer, and immediately told him that it must be taken off the premises. Upon the return of the appellant, the circumstances were related to him, and he insisted that his son must remove the liquid from the premises at once. This thé son agreed to do, but said that he would not “dump” it.

Appellant claimed that he admitted to the officers the ownership of the property in order to protect his son. 1-Ie denied .any offer to bribe the officers or any admission that he was going to sell the liquid.

A subdivision of the court’s charge reads as follows:

“You are instructed that the law provides that, where possession for the purpose of sale is made unlawful, the possession of more than one quart of spirituous, vinous, and malt liquor is prima facie evidence that said person possesses the same for the purpose of sale, but the defendant shall have the right to introduce evidence showing the legality of such possession, apd you cannot convict the defendant in this case unless you believe beyond a reasonable doubt that the defendant possessed said spirituous, vinous, and malt liquors for the purpose of sale, and that the same, if any, contained in excess of 1 per cent, of alcohol by volume.”

The other paragraphs of the charge very definitely and accurately state the law with reference to the prohibition of the possession of spirituous, vinous, or malt liquors containing in excess of 1 per cent, of alcohol by volume, and made application of the law to the evidence in hand, fully protecting the appellant’s rights, and putting before the jury both the state’s theory and that of the appellant in what occurs to us to be in a very appropriate manner.

The subdivision of the charge quoted is attacked upon various grounds. We fail to find it in conflict with the principle to which reference is made in Caldwell v. State (Tex. Cr. App.) 273 S. W. 608. It seems to be in substantial compliance with the precedents. See Stoneham v. State, 268 S. W. 156, 99 Tex. Cr. R. 54; Newton v. State, 267 S. W. 272, 98 Tex. Cr. R. 582; Lindsey v. State (Tex. Cr. App.) 276 S. W. 713; Louis v. State (Tex. Cr. App.) 278 S. W. 205. Moreover, in the present case, if the appellant was, in fact, the possessor of the liquor within the meaning of the law, the evidence, aside from the inference which the statute (Acts 38th Leg. 2d Called Sess. c. 22, § B), sanctions, was sufficient to show that the .fluid was possessed for the purpose of sale.

There are no exceptions to the rulings of the court upon the admission or rejection of evidence. Special charges are found, some of which were given and others refused. A discussion of them is not deemed necessary. Suffice it to say that, viewed in the light of the main charge, the action of the court in refusing the special charges was not error.

The motion for rehearing is overruled. 
      <@=pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     