
    SULLIVAN v. STATE.
    (No. 8837.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.
    Rehearing Denied June 17, 1925.)
    1. Intoxicating liquors <&wkey;l9—Statute declaring possession of more than quart of intoxicating liquor to be prima facie evidence of possession for unlawful purpose held not invalid.
    Acts 38th Deg. 2d Called Sess. (1923) c. 22, § B, adding § 2e to Acts 36th Leg. 2d Called Sess. (1919) c. 78, declaring the possession of more than a quart of intoxicating liquor to be prima facie evidénee that it is possessed for an unlawful purpose, is not invalid, notwithstanding Code Cr. Proe. 1911, art. 786, declaring the presumption of innocence.
    2. Intoxicating liquors <&wkey;236(7)—Evidence held to support verdict of guilty of possession of intoxicating liquor for purpose of sale, and not for medicinal purposes.
    Evidence held to support verdict of guilty of possession of intoxicating liquor for purpose of sale, and not for medicinal purposes.
    
      3. Criminal law <9=^743—Weight of accused’s uncontroverted testimony he possessed liquor for medicinal purposes held for jury.
    Weight of accused’s uncontroverted testimony that he possessed liquor for medicinal purposes, and riot for purposes of selling it, held for jury, who were not bound to believe accused.
    Appeal from District Court, Grayson County; F. E. Wilcox, Judge.
    Prank Sullivan was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    B. P. Gafford, of Sherman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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

Upon searching the dwelling of the appellant, three half gallon jars full of whisky were found above the ceiling in one of the rooms. On a former occasion, a search revealed a quantity of whisky. Some of it was in glass jugs, and some in rubber containers known as hot water bottles. • The presence of a small quantity of whisky in a gallon, jar was disclosed by the appellant at the time he was notified by the officers of their intention to search his place.

According to the appellant’s testimony, he was paralyzed, and had also been told that he was affected with tuberculosis; that due to his ailments it was necessary to use whis-ky, both in rubbing his person and as a drink. He explained that he had bought a quantity of, whisky from a traveling bootlegger, and that he did not reveal to the officers all the whisky upon his premises, for the reason that he felt the necessity of retaining some of it for medicinal use. It seems from his testimony that he had previously been convicted of unlawfully possessing whisky.

The validity of the statute declaring the possession of more than a quart of intoxicating liquor to be prima facie evidence that it is possessed for an unlawful purpose is assailed. To the best of our ability, this question has been examined and the conclusion of the court stated in several recent cases in which previous announcements to the same effect have been reviewed. See Newton v. State (Tex. Cr. App.) 267 S. W. 272; Stoneham v. State (Tex. Cr. App.) 268 S. W. 156; O’Brien v. State, 90 Tex. Cr. R. 276, 234 S. W. 668; Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794. For the reasons and precedents leading to the conclusions stated in the opinions mentioned, reference thereto is made, in the present case suffice it to say that the validity of the statute (Acts of 38th Leg. 2d C. S., p. 53, c. 22, § 2 e), was upheld, and the relation of the statute mentioned to article 786, C. C. P., declaring the presumption of innocence, discussed.

From Floeck’s case, supra, the following quotation is taken:

“ ‘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.”

Citing Burkhalter’s Case, 93 Tex. Cr. App. 504, 247 S. W. 539, and others, asserting the authority of this court,to set aside a conviction, manifestly wrong, and clearly showing that injustice had been done, but denying its authority to determine the weight to be given upon conflicting testimony, appellant insists that the verdict is without support in the evidence, and reflects an arbitrary disregard by the jury of the uncon-troverted declaration and testimony of the accused that he possessed the whiskey for medicinal use. On this subject we have also recently been called upon to write. In doing so, however, we have not been without the many precedents both in our own and other states. See Costillo v. State (Tex. Cr. App.) 266 S. W. 158; Hawkins v. State (No. 8599, Tex. Cr. App.) 270 S. W. 1025, not yet [officially] reported. See, also, Satterwhite v. State, 6 Tex. App. 609.

Appellant being an interested witness, even though uncontroverted, the weight to be given his testimony was a matter which the law commits to the jury. They were not bound to believe it, but were warranted in considering it in connection with the prima facie evidence which has been mentioned, and their conclusion therefrom is binding upon this court.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We regret that we cannot agree with appellant that the evidence does not support the verdict. It is true he' testified the whisky was kept for his own use for medicinal purposes. ’ This was left to the jury under a proper instruction that if they had a reasonable doubt upon this, issue to acquit appellant. We apprehend that able counsel who presented the matter so persuasively before us urged the point with equal plausibility before the jury. The :£act that upon the occasion of the two raids upon the premises of appellant a quantity of whisky was found, one time secreted in the loft, and the other time in rubber hot water bottles concealed among the bedclothes, furnished some basis for the jury to conclude that the' whisky was not being kept for legitimate medicinal purposes which would not be likely to prompt' such concealment as is here in evidence.

The motion for rehearing is overruled. 
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