
    RAYMOND v. STATE.
    (No. 10609.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1927.)
    1. Criminal law &wkey;>693 — Motion to suppress testimony, procured by alleged illegal search, before testimony was offered, held improper procedure and correctly overruled.
    Motion to suppress testimony alleged to have been obtained by an illegal search of defendant’s residence, made before the testimony was offered, was incorrect procedure and properly overruled; objection at time evidence offered being sufficient protection of defendant’s rights.
    2. Intoxicating liquors <©=236(7) — Proving possession of more than quart of intoxicating liquor overcomes presumption of innocence and supports conviction of possession for sale.
    Where the possession of intoxicating liquor in an amount beyond a quart is proved, a prima facie case of possession for the purpose of sale is made out sufficient in itself to support a verdict of guilty.
    3. Criminal law <&wkey;829(l2) — Refusal of special charge explaining effect of prima facie evidence held no error; being covered in main charge.
    Where court explained the meaning and significance of prima facie evidence in its main charge, refusal to give special charge on that phrase held no error. '
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    
      Roberta Raymond was convicted of the unlawful possession of intoxicating liquor, and she appeals.
    Affirmed.
    James T. Casey and Sam B. Hall, both of Marshall, for appellant.
    Sam X>. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two .years.

Prom the state’s evidence, officers, acting under a search warrant, searched the dwelling of the appellant and found therein a quantity of whisky.

Bill No. 1 reflects the action of the court in declining to entertain the preliminary motion to suppress the testimony of Henderson, Gilstrap, and Ezell upon the ground that the facts within their knowledge were obtained through the search of a private dwelling without a search warrant. The bill fails to show the evidence adduced or that the averments in the motion were ascertained by the trial court to be true, nor does it show what evidence the state expected from the witnesses named. In these particulars the bill is incomplete even if the procedure was proper. Upon the latter point, however, the rule prevailing in this state does not sanction the procedure attempted. If the averments in the bill were true, the appellant’s rights would be fully protected by objection to the evidence when it was offered. See Foster v. State, 104 Tex. Cr. R. 121, 282 S. W. 600.

Bill No. 2 complains of the refusal of the court to read to the jury a special charge instructing them that in order to convict the accused it was essential that the state have evidence in addition to that showing that the appellant possessed a quantity of whisky beyond a quart. In the main charge the court gave an instruction embracing the substance of the definition of “prima facie evidence” such as is contained in the ease of Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794. Where the possession of intoxicating liquor in an amount beyond a quart is proved, a prima facie case of. possession for the purpose of sale is made out. Such is the statute, chapter 22, Acts 38th Leg. 2d Called Sess. Such proof is sufficient to overcome the presumption of innocenpe and to support a verdict of guilty. See Newton v. State, 98 Tex. Cr. R. 582, 267 S. W. 272; Stoneham v. State, 99 Tex. Cr. R. 54, 268 S. W. 156, and authorities collated.

Bill No. 3 complains of the refusal of a special charge upon the same subject as that covered in bill of exceptions No. 2.

Bill No. 4 complains of the refusal of a special charge explaining to the jury the effect of the term, “prima facie evidence.” The special charge is in substance embraced in the main charge. With reference to both bills Nos. 2 and 3, we will add that in neither is it shown that it was presented to the trial court before the argument began. See articles 658, 659, and 660, O. O. P. 1925 ; old Code, articles 735, 737, and 737a; Vernon’s Tex. Orim. Stat. 1916, vol. 2, p. 525, note 63.

Finding no error in the record, the judgment is affirmed. 
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