The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cimarron county on a charge of having possession of intoxicating liquor, to wit, home-brew, with intent to violate the prohibitory liquor laws, and his punishment fixed by the jury at a fine of $50 and confinement in the county jail for 30 days.
The evidence of the state shows that they found two gallons of fermented and malt intoxicating liquor in defendant's store, and that an analysis of two bottles of such liquid showed that one bottle contained 2.90 per cent. and the other 3.85 per cent. of alcohol. The defendant claimed to have this liquor for the use of himself and his family. Defendant first contends that the evidence is insufficient to support the verdict, but there is no merit in this contention. The jury were not bound to believe the explanation offered by the defendant, and since the evidence offered by the state made a prima facie case both as to quantity and volume of alcohol, the evidence sustains the verdict.
The defendant next contends that the court erred in instructing the jury upon the question of what constituted transportation, but since the question of transportation is not the offense charged, and since this evidence was brought out by the defendant in attempting to explain the use he intended to make of the liquor, the instruction complained of could not have been prejudicial to him. For the reasons stated, the cause is affirmed.
EDWARDS, P.J., and DAVENPORT, J., concur. *Page 26