
    STEPHENS v. STATE.
    (No. 10885.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    Criminal law <&wkey;759(2) — Instructions that possession of more than quart of liquor is presumed for purpose of sale held erroneous as invading jury’s province.
    Instruction that possession of more than one quart of intoxicating liquor raises presumption that such possession is for purpose of sale held erroneous, since matter of guilt must be left to jury as question of fact, and not determined by court as legal presumption.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Guy Stephens was convicted of unlawfully possessing intoxicating liquor, and he appeals.
    Reversed and remanded.
    G. O. Crisp, of Kaufman, for appellant. Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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

Acting under a search warrant, the premises of the appellant were searched, and found to contain about three gallons of whisky. There were also some empty fruit jars and a barrel of mash. The wbisky was buried on tbe premises.

At tbe time of reading bis main charge tbe court instructed tbe jury, giving them a definition of “prima facie evidence” in substantially tbe same language as that term was defined in Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794. After considering tbe case, the-jury came into open court, and reguested that they be given further instructions upon tbe law of “prima facie evidence.” Tbe court gave them an additional charge, using this language: •

“Now, if you believe from the evidence beyond a reasonable doubt' that tbe defendant possessed more than one quart of intoxicating liquor at tbe time and place charged in the first count in the indictment, tbe law presumes, and you must presume, that such possession was for the purpose of sale.”

This charge was in effect an instruction to tbe jury that, if they believed, beyond a reasonable doubt, that tbe appellant possessed more than one quart of intoxicating liquor, they must find him guilty. This is giving an interpretation to tbe statute on “prima facie evidence,” which goes beyond that which tbe law permits. Tbe statute does not make tbe proof of possession of more than one quart of liquor an absolute proof of guilt. Tbe matter of guilt must be left to tbe jury as a question of fact, and not determined by tbe court as a legal presumption. See Walden v. State, 100 Tex. Cr. R. 584, 272 S. W. 139, and cases cited; also Veasey v. State, 97 Tex. Cr. R. 299, 260 S. W. 1054; Caldwell v. State, 101 Tex. Cr. R. 75, 273 S. W. 608. Tbe state’s attorney before this court concedes that tbe action of tbe court is erroneous, and in this view we concur.

There are other questions raised, but, in view of tbe disposition made, a discussion of them is not deemed necessary.

Tbe judgment is reversed, and tbe cause remanded. 
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