
    PARSONS v. STATE.
    (No. 9456.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.
    Rehearing Denied Jan. 13, 1926.)
    Intoxicating liquors <&wkey;238(4) — Evidence of possession of more than quart of wine sufficient to take to jury question of intent to sell.
    Evidence of possession of more than quart of wine is sufficient to take to jury question of possession for purpose of sale, in view of Pen. Code 1925, art. 671.
    2. Criminal law &wkey;74l(l), 742(1) — Weight of testimony and credibility of witnesses for jury.
    Weight of testimony and credibility of witnesses, on issue whether defendant possessed wine for purpose of sale, are entirely for jury.
    3. Criminal law <&wkey;>554 — Jury not bound to believe defendant’s uncontradicted testimony.
    Jury is not bound to believe defendant’s testimony, though uncontradicted.
    4. Intoxicating liquors &wkey;>238(3) — Whether grape wine was' intoxicating held for jury.
    Whether grape wine in defendant’s possession was intoxicating held for jury on conflicting testimony.
    5. Criminal law &wkey;>783(l) — Charges held sufficient to protect defendant against conviction for more than one offense.
    Charges submitting question of possession of grape wine only .held sufficient to protect defendant against conviction for more than one offense, on evidence of possession of blackberry as well as grape wine.
    6. Criminal law &wkey;>844( I) — Objection to charge as on weight of evidence insufficient.
    Objection to charge on presumption arising from possession of more than quart of wine on weight of evidence held insufficient.
    On Motion for Rehearing.
    7. Witnesses <&wkey;363( I) — Interest, motive, or animus of witness, including defendant, material.
    Interest, motive, or animus of witness, including defendant, is material inquiry, and may be shown to enable jury to determine weight of testimony and credibility of witness.
    Commissioners’ Decision.
    Appeal from District Court, Montague County; Vincént Stine, Judge.
    Will Parsons was convicted of possessing intoxicating liquor for sale, and he appeals.
    Affirmed.
    Chancellor & Bryan, of Bowie, 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 appellant was convicted in the district court of Montague county for rthe offense of possession of intoxicating liquor for the purposes of sale, and his punishment assessed at confinement in the penitentiary for a term of one year.

Appellant very earnestly contends in his brief and oral argument before this court that the court erred in refusing to instruct a verdict of not guilty because the evidence is wholly insufficient to show that he possessed the wine in question for any other purpose than for his own personal use. The record discloses that appellant was found in possession of 10 gallons of grape wine in the fall of 1923, and that he was found in possession of approximately 40 gallons of blackberry wine in the spring or summer of 1923. The court only submitted the question of the possession of the grape wine to the jury for its consideration. The record further discloses that at the time the grape 'wine was found the sheriff testified that he also found two more barrels on the premises at that time — one of these was a 40 or 50 gallon barrel, and the other was about a 30-gallon barrel — and that they seemed to have contained wine; it smelled like wine, and that he examined the barrels, and that the barrels were in a little house right back of the dwelling house, in a little smokehouse or outhouse, and that one of Ine empty barrels had a faucet, but one did not; that he found a tin funnel and an ordinary drinking glass. It is also in testimony that the wine so found was intoxicating.

The appellant testified in his own behalf, and stated that he did not sell any of the wine; that he made it for his own use, and never had any notion of selling it, and that he did not know it was against the law to make wine; that the officers searched his place along in the spring and told him they were looking for a still, and he told them to go ahead and search everywhere they wanted to, and he went with the officers to let them in the smokehouse, but that when he got there other officers had already broken in, and that they found wine at that time in’ his smokehouse, and they told him they were looking for a still, and he told them to go ahead and look, and then he said to the officers, “You are not looking for wine?” and they said “No,” and he then figured it was not against the law, and in the fall he made some more wine, being that for which he is convicted. He also testified that one of the state’s witnesses was mistaken about there being two barrels of wine.

It occurs to us that, under the facts, there can be no question but that the issues were sharply drawn as to whether or not the appellant had the wine in question for the purpose of sale. Without dispute he had on hand more than a quart,- and under the statute proof of this fact makes the possession of such a quantity prima facie evidence that he had it for the purpose of sale. It is true, of course, that he is entitled to offer testimony tending to overcome the prima facie ease thus made by the state, but the weight of the testimony and the credibility to be given to the witnesses are matters left entirely to the discretion of the jury trying the ease. It is well settled in this state that the jury is not bound to believe the appellant’s testimony, although it be uncontradicted. Sullivan v. State, 100 Tex. Cr. R. 419, 273 S. W. 566, and cases there cited. To hold that, as a matter of law, the appellant in this case is not shown to be guilty would be in effect to abrogate the plain terms of the statute which makes the possession of more than a quart of intoxicating liquor prima facie evidence that its possession is for the purpose of sale.

In addition to what has been said, we do not deem it amiss to add that, under all the testimony introduced on the trial of this case, we think the jury was well within its rights in refusing to believe that the appellant was making this wine with no intent to sell it. Neither can we agree with appellant’s contention that the testimony failed to show that the grape wine was intoxicating. In testifying on this question Walker, the sheriff of Montague county, used this language:

“I have had sufficient experience in drink-, ing wine and seeing wine and observing the effects of wine to know whether or not wine is intoxicating liquor. Yes sir; the wine on these premises at that time was intoxicating.”

It is true that, on the contrary, two of appellant’s neighbors testified that they drank some of the wine, one about 6 ounces and the other about 9 or 10 ounces, and stated that in their opinion it was not intoxicating. It is so well settled in this state that matters of this character are proper questions for the decision of the jury as to make it unnecessary to further write concerning this matter.

Appellant’s counsel in oral argument insists that the court was in error in failing to designate to the jury in his charge as to which offense their verdict should be based upon. On this question, the proof was undisputed that the officers found blackberry wine at appellant’s home in the spring or summer of 1923, and that they found grape wine in the fall or winter of that year. In submitting the question to the jury the court instructed the jury to the effect that they could convict appellant if he possessed grape wine on or about the 4th day of December, 1923, and did not submit for their consideration the question of his possession of blackberry wine at all.

The record discloses that the court also gave a special charge to the effect that if the jury believed from the evidence beyond a reasonable doubt that the defendant possessed grape wine capable of producing intoxication in Montague county on or about the 4th day of December, 1923, yet if the jury believed from the evidence that the same was not possessed for the purpose of sale, or if they had a reasonable doubt thereof, to acquit the defendant. We think these charges clearly protected appellant against a conviction for more than one offense, and were entirely sufficient to direct the jury’s minds to the fact that' he was being tried only for the possession of the grape wine.

Appellant also complains at the court’s action in charging on the presumption arising from the possession of more than a quart of wine. The only objection we find in the record to this charge is that it is a charge on the weight of the evidence and should not have been given. This objection to the charge is insufficient to point out any error in the giving of the same.

Rinding no error in the record, it is our opinion that the judgment should 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.

The evidence discloses that in the summer antecedent to the date of the present transaction in December, upon a search of - the appellant’s premises, there was found a large quantity of blackberry wine. One 40 or 50 gallon barrel was full and another partly full. However, no arrest of the appellant was made upon that occasion. At the time of this happening the officers told the appellant that they wanted to search his premises. Upon finding the wine, they said they were looking for a distillery. Appellant said: “Go ahead and look; you are not looking for wine?” The officers replied, “No.” From these acts and declarations, the appellant assumed or inferred that in making the wine he was not violating the law. Having exhausted his supply of blackberry wine, he subsequently made a quantity of grape wipe. Upon searching his premises in December, there was found a 40-gallon barrel containing about 10 gallons of grape wine, and two other barrels of like size which, from their odor, appeared to have contained wine. Appellant introduced some witnesses who had drunk some of the wine, and who gave the opinion that it was not intoxicating. However, upon this issue, the evidence was conflicting. A state’s witness said that in the summer he had observed a road to the appellant’s premises, which was a neighborhood road, bearing evidence of much more travel on its way to the appellant’s house than it did elsewhere. In the fall the condition of the road as to travel could not be obtained for the reason that it had been recently graded..

The appellant’s testimony to the effect that he had never sold any of the wine but made it entirely for his own use, under the circumstances, presented an issue for the jury. Under the statute (article 671, P. C. 1925), the possession of more than a quart of intoxicating liquor is prima facie evidence of guilt. This statute has been upheld in Stoneham v. State, 99 Tex. Cr. R. 54, 268 S. W. 156; Lindsey v. State (Tex. Cr. App.) 276 S. W. 713; Newton v. State, 98 Tex. Cr. R. 582, 267 S. W. 272; 31 A. L. R. 1222.

Appellant insists in his motion that he having testified that he did not possess the wine for the purpose of sale, the conviction was not warranted. We have given this subject mature consideration on former occasions. In the case of Hawkins v. State, 99 Tex. Cr. R. 571, 270 S. W. 1025, on motion for rehearing, the statutory law and precedents in this and other jurisdictions were given attention. Among the cases cited are Satterwhite v. State, 6 Tex. App. 609; Vernon’s Tex. Crim. Stat. vol. 2, p. 688, note Ruling Case Law, vól. 28, p. 660, § 245.

No principle of evidence is more firmly settled than that which recognizes that the interest of a'witness and the motive or animus which operates upon his mind is a subject of material inquiry. The receipt of such evidence is obviously to enable the jury to determine the weight to be given to the testimony and the credibility of the witnesses. In enacting the statute permitting one accused of crime to testify in his own behalf, it was never intended that his evidence should be conclusive of his innocence. The statute conferred upon him the right to have the jury determine, in the light of his interest and the other testimony, whether his evidence was true.

The motion for rehearing is overruled. 
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