
    NEWTON v. STATE.
    (No. 8459.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Dec. 10, 1924.)
    1. Constitutional law <§=>55 — Intoxicating liquors <§=36 — -Legislature held to have power to enact statute making possession prima facie evidence of guilt.
    Legislature had power to enact chapter 22. § 2e, Acts 38th Leg. 2d Called Sess. (1923), providing that proof of possession of intoxicating liquor of more than a certain quantity shall be prima facie evidence of possession for sale, as an exercise of the right to change rules of evidence within proper limits.
    2. Criminal law <§=3808'/2 — Instruction held not erroneous as containing an absolute presumption against defendant under a certain state of facts.
    Instruction following chapter 22, § 2e, Acts 38th Leg. 2d Called Sess. (1923), providing that possession of a certain quantity of intoxicating liquor shall he prima facie evidence of guilt of possession for sale, but that defendant may show legality of possession, held not erroneous as containing an absolute presumption against defendant.under a certain state of facts.
    3. Criminal law <§=3823(2) — Intoxicating liquors <§=>239(2) — Instruction following statute in liquor prosecution held not erroneous as inapplicable or assuming possession, in view of other instructions.
    Instruction under chapter 22, § 2e, Acts 38th Leg. 2d Called Sess. (1923), that possession of a certain quantity of intoxicating liquor was prima facie evidence of possession for sale, held not erroneous as inapplicable and assuming defendant’s possession of liquor, where other instructions fairly presented defensive issue.
    On Motion for Rehearing.
    4. Criminal law <§=3778(2) — Rule against requiring defendant to excuse or justify act held not to render instruction erroneous.
    The rule, forbidding court to charge that, when state has proved prohibited act, accused intending to excuse or justify must introduce evidence to that end, does not render erroneous instruction in language of Acts 38th Leg. 2d Called Sess. (1923), c. 22, § 2e, that possession of more than one quart of intoxicating liquor is prima facie evidence of possession for sale.
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Jesse Newton was convicted 'of violating the prohibition law, and he appeals.
    Affirmed.
    D. H. Jones and 6. B. Fenley, both of . Uvalde, and T. H. McGregor and A. L. Love, both of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin,' for the State.
   HAWKINS, J.

Appellant is convicted for possessing intoxicating liquor for the purpose of sale; punishment assessed being one year in the penitentiary.

Officers had received information which caused them to be on watch late at night at a gate on a road leading to Uvalde. An automobile traveling toward the city stopped at this gate; appellant got out to open it. The ear belonged to and was being driven by one Coon. Some IS quarts of corn whisky in a keg was found in the ear, also a small fruit jar about half full of whisky. Both Coon and appellant were separately indicted for possessing the liquor for the purpose of sale.

In chapter 22, § 2e, Acts 2d Called Sess. 3Sth Leg., it is provided that, whenever possession of intoxicating liquor for the purpose of sale is made unlawful, proof of the possession of more than one quart shall be prima facie evidence of guilt, but that the defendant shall have the right to introduce evidence showing the legality of such possession. The court gave this statute in his charge. Objection thereto was urged for various reasons; the principal one being that it was a charge upon the weight of the evidence, and invaded the province of the jury.

There can be no doubt we think of the power of the Legislature to enact the law in question. It was the exercise of a right to change the rules of evidence within proper limits. From a “case note” under North Carolina v. Barrett, 138 N. C. 630, 50 S. E. 506, 1 L. R. A. (N. S.) 626, we quote:

“The power of the Legislature to pass a statute making the possession of a certain amount of intoxicating liquor prima facie evidence of an intent to violate the law against illegal sales is supported by the authorities and textbook writers, and is based upon the right of the Legislature to change the rules of evidence, and upon the doctrine that an accused person has no vested right in any presumption or rule of evidence which the law-making power cannot alter, within certain limits. When possession is shown, then the legal presumption of guilt arises, and it devolves upon the accused to give a satisfactory explanation. Such a statute does not make it obligatory upon the jury to convict after the presentation of such proof, but it shifts upon the accused the duty to explain. 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”’

Many authorities will be found collated in the notes under this case, as reported in L. R. A., and also under McComb v. Hill, 100 Miss. 193, 56 So. 346, 39 L. R. A. (N. S.) 534. See, also, State v. Sheppard, 64 Han. 451, 67 P. 870; Parsons v. State, 61 Neb. 244, 85 N. W. 65. Practically the same question was considered by this court in Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794; it being there, held that the Legislature had a right to enact such a statute, and that no error was committed in giving the same in charge to the jury. The Floeck Case was followed with approval in O’Brien v. State, 90 Tex. Cr. R. 276, 234 S. W. 668. The charge in the present ease is not subject'to the objection that it contains an absolute presumption against appellant under a certain state of facts, but follows the statute, and advises the jury in effect that the presumption arising from certain facts may be rebutted.

The charge complained of is further assailed upon the ground that it was inapplicable under the facts proven, and assumed that appellant was in possession of the •liquor in question. Appellant made no effort to explain possession, but denied possession, guilty knowledge, or participation of any kind. He claimed to have been only a guest of Coon, riding in his automobile at his invitation. The learned trial judge instructed upon the issue thus raised by a charge upon principals, and by an additional charge from appellant’s standpoint, which seems to have protected him from every angle.. He required the jury to find from the evidence beyond a reasonable doubt that appellant was acting as a principal, and as such had possession of the liquor for the purpose of sale before a conviction could result; the jury was further informed that appellant’s presence alone would not make him a principal, and that if he was invited-by Coon to ride in the automobile, and that Coon got the whisky without appellant’s knowledge of the’unlawful intent of Coon, or even if he knew that Coon went to get the liquor, but that appellant did nothing to assist or encourage him other than simply to ride out and back with him, then appellant could not be convicted. In view of the instructions fairly presenting the defensive issues, we think- the criticism- of the -charge- -complained of untenable.

Motion to quash the indictment was presented, but we fail to discover any vice in it.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Appellant, through his counsel, forcefully argues that-the charge in the present case offends against the general rule forbidding the court to instruct the jury that when the state has proved the prohibitive act the accused, intending to excuse or justify, must introduce evidence to that end. See Jones v. State, 13 Tex. App. 1; Dubose v. State, 10 Tex. App. 230; article 51, C. C. P. In our judgment, a different rule controls the present case. It has often been held in cases involving violations of the laws prohibiting the liquor traffic that the principle relied upon by the appellant is sound, and in a proper case should prevail. See Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895; Clevenger v. State, 96 Tex. Cr. R. 23, 255 S. W. 622; Simpson v. State, 93 Tex. Cr. R. 303, 247 S. W. 548; Chance v. State, 85 Tex. Cr. R. 62, 210 S. W. 209; Cowley v. State, 72 Tex. Cr. R. 173, 161 S. W. 471; Scott v. State, 70 Tex. Cr. R. 59, 153 S. W. 871; Ratliff v. State (Tex. Cr. App.) 78 S. W. 936. Under some of the statutes in this state the rule has no application. For example, article 1009, P. C., declares in substance that in assault cases where the injury is caused by violence, the intent to injure is presumed unless the absence of such intent is revealed. In a proper case, a charge containing the substance of the statute has been held proper. See McConnell v. State, 25 Tex. App. 329, 8 S. W. 275; McKay v. State, 44 Tex. 43; Atkins v. State, 11 Tex. App. 8; Floyd v. State, 29 Tex. App. 341, 15 S. W. 819; Harper v. State, 84 Tex. Cr. R. 346, 207 S. W. 96; Thompson v. State (Tex. Cr. App.) 89 S. W. 1081. When no injury was inflicted, however, a charge that the intent to injure is presumed has been held improper. Tubbs v. State, 50 Tex. Cr. R. 143, 95 S. W. 113. The instruction in the present case is in substance that proof by the state of possession of more than one quart of intoxicating liquor upon the part of the accused shall be prima facie evidence of his guilt, hut he shall have the right to introduce evidence showing the legality of his possession.

As stated in the original opinion, the power of the Legislature to declare that proof of certain stated conditions shall be prima facie evidence of a violation of the law has been repeatedly upheld, and in this state, where such legislative authority has been exercised, this court has approved a charge like the one in question. In Floeck’s Case, 34 Tex. Cr. R. 314, 30 S. W. 794, the accused was unlawfully pursuing the occupation of selling intoxicating liquor. Upon the trial the court instructed the jury that it had been declared by statute that the payment of the United States special tax as a Seller of such liquors shall be prima facie evidence that the person paying the tax is engaged in such business. The action of the trial court was upheld, and the judgment of conviction affirmed. In O’Brien’s Case, 90 Tex. Cr. R. 276, 234 S. W. 668, the propriety of instructing the jury under the provisions of article 640c, Vernon’s Ann. P. C. 1916, to the effect that the desertion of the wife, etc., should be prima facie evidence that such desertion is willful has been held legal.

We confess our inability to distinguish the facts of the present case from those in which the charge that a given state of facts would be prima facie evidence has been held proper and approved.

In the present case, the right of the accused to the presumption of innocence until his guilt was 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. Taken as a whole, we think the charge fully recognized the limitations which the law places upon the term “prima facie” evidence.

The meaning of th'e 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 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.”

In a proper case, upon request, doubtless the trial court would restrict the jury in the meaning of “prima facie” evidence. See Ayres v. State, 21 Tex. App. 399, 17 S. W. 253.

Of the other points to which the motion is addressed proper disposition has heretofore been made, and further discussion of them is deemed unnecessary.

The motion is overruled. 
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