
    HERRIN v. STATE.
    (No. 8815.)
    (Court of Criminal Appeals of Texas.
    April 1, 1925.
    Rehearing Denied May 6, 1925.)
    1. Criminal law <&wkey;923(I) — Disqualification of * juror because not freeholder or householder is not ground for new trial, in absence of injury.
    Where juror answered on his. voir dire examination that he was a freeholder or householder, and accused’s counsel did not learn that such was not the case until after verdict, new trial will not be granted on ground that juror was disqualified, in absence of showing of injury.
    2. Criminal law <&wkey;823(9) — Instruction relating to presumption from possession of liquor held not erroneous, in view of other instruc- . tions.
    Instruction in accordance with Acts 2d Called Sess. 88th Leg. (1923), c. 22, § B, adding section 2e to Acts 2d Called Sess. 36th Leg. (1919), c. 78; as amended by Acts 1st Called Sess. 37th Leg. (1921), c. 61, that possession of more than one quart of intoxicating liquor was prima facie evidence of guilt, but defendant had right to introduce evidence of legality of such possession, was not erroneous, in view • of other instructions that state had burden *of proof, that evidence must show accused guilty beyond'reasonable doubt, and that, if defendant had such liquor for certain purposes, he would be entitled to acquittal.'
    3. Intoxicating liquors &wkey;>236(7) — Evidence held to> support finding that accused possessed liquor for purpose of sale.
    Evidence Iteld to support finding that accused had possession of liquor for purpose of sale and not for medicinal use.
    cgcsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Newton County; V. H. Stark, Judge.
    Lee Herrin was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    J. B. Forse, of Newton, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. ,
   HAWKINS, J.

Conviction is for the possession of intoxicating liquor foi the pur-; pose of sale, punishment one year in the penitentiary.

One ground of the motion for new trial was that the juror Terry was neither a freeholder nor householder, and that this was not known to attorneys representing defendant until, after verdict. When the general question was asked the jurors, upon their voir dire examination relative to such matter, Terry answered in the affirmative, believing that he was a householder. Counsel for defendant did not interrogate him on this point, taking it for granted the juror had answered correctly. In fact he was neither a householder nor a freeholder. Reliance is had on Boren v. State, 23 Tex. App. 28, 4 S. W. 466, Hanks v. State, 21 Tex. 526, Henrie v. State, 41 Tex. 573, Armendares v. State, 10 Tex. App. 44, as supporting the contention that this fact entitled defendant to a new trial. All the cases relied on were overruled in principle, and the Boren and Armendares Cases specifically in Leeper v. State, 29 Tex. App. 63, 14 S. W. 398. In the absence of injury shown, the latter case has been consistently followed. See cases collated in the last paragraph of section 548, p. 282, Branch’s Ann. P. C., also Martinez v. State (Tex. Cr. App.) 57 S. W. 839, Watson v. State, 82 Tex. Cr. R. 462, 199 S. W. 1098, and cases therein cited.

The court instructed the jury in accord with section 2e 'of Chapter 22, 2d Called Sess. 38th Leg., that proof of the possession of more than one quart of intoxicating liquor shall be prima facie evidence of guilt, but the defendant shall have the right to introduce evidence showing the legality of such possession. This charge was excepted to, but no reasons for same are stated. This charge where appropriate has been upheld in Newton v. State (Tex. Cr. App.) 267 S. W. 272, and Stoneham v. State (Tex. Cr. App.) 268 S. W. 156, based upon Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794, O’Brien v. State, 90 Tex. Cr. R. 276, 234 S. W. 668, and the authorities cited in Newton’s and Stoneham’s Cases. See, also, Laponite’s Case, 81 N. H. 227, 123 A. 692, 31 A. L. R. 1212, for general discussion of the subject with notes on opinions from many states.

In the present case the jury were told that the burden of proof rested upon the state, and they were required 'to find from the evidence beyond a reasonable doubt that defendant was guilty, before a conviction was authorized. The defensive issues were also properly submitted wherein the jury was told that, if defendant was in possession of the whisky for medicinal purposes for the use of his family, or if such possession of it was not for the purpose of sale, he would be entitled to an acquittal, or, if they entertained a reasonable doubt upon either of such issues, they could not convict. As guarded in the instructions we perceive no error in giving the charge to which objection was interposed. We think Gorman’s Case, 52 Tex. Cr. R. 327, 106 S. W. 384, relied'upon by defendant, does not support the objection now made. Gorman was charged 'with a particular sale of whisky. The court there instructed the jury that, if Gorman had a retail liquor dealer’s license it would be prima facie evidence of his guilt in making the particular sale, when the statute only made it prima facie evidence that he was engaged in the business of a retail liquor dealer. It was very properly .held that such instruction went beyond the statute.

It is urged that'the evidence is not sufficient to show that the liquor found in appellant’s possession was had for the purpose of sale. The sheriff testified that on the night of February 27th he was in the road not far from appellant’s house and saw a car drive up, turn, and stop; that witness walked up the road directly behind the car and heard some one whistle outside the road; that he walked towards where the w-histle came from and there saw appellant sitting on the ground beside the trail with two quarts of corn whisky immediately in front of him and within reach of his hand. The parties in the ear were Albritton and Stoker. The defendant was about 20 steps from where the car stopped. Stoker testified that during the day prior to the incident testified to by the sheriff he had seen defendant in the town of Newton and inquired if witness could get some whisky from defendant for sickness; that defendant replied that he had a little at home. Stoker says he did not ask the defendant to sell him the whisky, nor did the defendant say he would sell it to him. It appears further from Stoker’s testimony that a Mexican had given him $2 and requested witness to bring him a quart of whisky also if he could get it. He had gotten the money from the Mexican before he first talked to the defendant. Witness says defendant told him to come down to his house; that he had some whisky and would divide with him; that he did not say he Would let him have two quarts. But defendant had two quarts when the officer interrupted the transaction. Defendant testified that he did not have the whisky for the purpose of sale but had it for medicine; that some of his family had the measles, and that Stoker told him some of his (Stoker’s) folks were sick and was asking about some whisky for them; that defendant told him he had some and would divide with him; that he did not have the whisky out there near the road for the purpose of selling it to Stoker.

We cannot agree that the evidence does not support the jury’s finding that appellant was in possession of the- whisky for the purpose of sale. The transaction appears to .have been too surreptitious in its character to indicate a friendly furnishing of liquor to a neighbor on account of sickness in his family. The appearance of Stoker near appellant’s premises at night, the mysterious whistle which attracted the attention of the sheriff, the defendant’s waiting attitude, with the whisky in convenient reach of his hand —these facts do not comport with a possession thereof for a purpose in consonance with the contention of accused. The jury having passed upon this issue of fact, we would not be authorized in saying that they were not justified in reaching the conclusion reflected by the verdict.

The judgment is ordered affirmed.

On Motion for Rehearing.

The motion is based upon the sole proposition that we were in error in holding that the facts justified the jury in finding that appellant was in possession of the liquor for the purpose of sale. In support of his contention he refers us to Hester v. State, 97 Tex. Cr. R. 510, 262 S. W. 484. We do not regard the facts of that case as at all parallel with the facts shown in the present one. Hester had just gotten some whisky from a negro at the latter’s house. Officers found Hester in possession of the liquor before he left the house. If the negro from whom Hester got the whisky had been on trial, the case would have been more nearly in point.

We think the verdict and judgment should remain undisturbed. ' '

The motion is overruled.  