With what intent a persons keeps intoxicating liquor is always a question for the jury, to be determined upon a consideration of the evidence; in the determination of that question the jury is required by the statute to consider the keeping of a certain amount of intoxicating liquor as "prima facie evidence" of an intention to convey, sell or otherwise dispose of such liquor, but the evidence may be rebutted by other evidence in the case, whether shown by the evidence on the part of the defense, or by the state in connection with the evidence proving possession, if any has been proved, the jury must also take into consideration the presumption of innocence of the accused until the contrary is proved beyond a reasonable doubt.
In the case of Committi v. State, 28 Okla. Cr. 380,231 P. 316, 317, under the statute (sec. 2626, O. S. 1931, 37 O. S. 1941 § 82) we said:
"It is error to charge that 'the term "prima facie," as used herein, means that it is such evidence as in the judgment of the law is sufficient to establish the fact of unlawful intent, if it be credited by the jury, unless rebutted, and the contrary proved, and remains sufficient to establish the unlawful intent,' because it places upon defendant the burden of raising a reasonable doubt of his unlawful intent to so convey, sell, or dispose of such liquor. Since the statute only means to make such evidence competent and sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof. Whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant and establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury." *Page 89
Counsel for defendant requested the court to give the following instruction:
"The court instructs the jury that the term 'prima facie' evidence as used in the statute, and as heretofore defined to you in these instructions, is such evidence as in the judgment of the law is sufficient to establish the fact, if it be credited by the jury, and evidence of such possession is sufficient to establish the unlawful intent, unless rebutted or the contrary proven, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, whether or not such evidence is sufficient to overcome the presumption of innocence of the defendant and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury, and the term 'prima facie' evidence as applied to the evidence does not shift the burden of proof."
The instruction requested should have been given. Citing Huff v. State, 12 Okla. Cr. 138, 152 P. 464; Beal v. State,12 Okla. Cr. 157, 152 P. 808; Butler v. State, 12 Okla. Cr. 530,159 P. 1090.
For the reasons stated, I think the judgment should be reversed and the cause remanded with direction to grant a new trial according to law.