Appellant files a motion for rehearing which evidences thought and research, seeking to have us hold that the statute (Art. 671 P. C.), making proof of possession of mash, or a still, or of more than one quart of intoxicating liquor, prima facie evidence of guilt, — is in conflict with Art. 705 Cow. C. P., which gives to every person accused of a crime the presumption of innocence until his guilt is established by legal evidence beyond a reasonable doubt; and also with Art. 706 Cow. C. P., which makes the jury in all cases the exclusive judges of the facts proved and of the weight to be given to the testimony, etc. However, appellant fails to take note in his motion of the latter part of said Art. 706, which proceeds:
"Except where it is provided by law that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of weight is to be attached to a certain species of evidence."
It is interesting to note that Arts. 705 and 706, supra, were enacted at the same time and written into our earliest Code of Criminal Procedure, and that from the beginning in this State it was evidently contemplated that the Legislature might make laws giving certain weight to certain facts when proved, and making proof of certain facts either conclusive or presumptive proof of some other fact.
This is an exact comprehension of Art. 671, supra, wherein it is provided that proof of the possession of more than one quart of intoxicating liquor, shall be prima facie evidence of guilt. The interpretation placed on this by the courts of this State is that thus by statute such proof is declared sufficient to overcome the presumption of innocence in the absence of other proof which may show or explain that such possession is under some of those phases of the law which allows one to possess intoxicating liquor. We might observe here that the giving of this law in charge in nowise frees the trial court from the necessity of giving in charge to the jury also the law of the presumption of innocence applicable to the whole case, including the proof of possession relied on.
We have examined appellant's motion and note his citation of authorities, but this court went over the same ground in Floeck's *Page 21 case, 34 Tex.Crim. Rep., which has been uniformly followed since. We deem it unnecessary to repeat what was there said. We do not find anything in Walden v. State,100 Tex. Crim. 584, which departs from or even questions the conclusions announced in the Floeck case, supra. In the Walden case it appeared that the trial court pointedly told the jury in his charge that if they found that the accused knowingly had in his possession more than a quart of whisky, they should find him guilty. This instruction is beyond the purview of Art. 671, supra. Our Legislature did not say in said article that proof of possession of more than a quart of intoxicating liquor was conclusive evidence of guilt, but that it was merely prima facie evidence. We have not before us the facts in the Walden case, supra, but those in the instant case show that no effort was made on the part of the defense to meet and overcome the prima facie case made by the State in proving appellant's possession of four gallons of whisky on the occasion in question. No proof was introduced that he had it for any purpose allowed by statute. The case made was sufficient to meet the demands of the law.
The motion for rehearing will be overruled.
Overruled.