The definition of "prima facie evidence" used by the court is in the language of one definition found in Words Phrases, Vol. 6, page 89, (3d Series), which was taken from Gilmore v. Modern Brotherhood of America, 171 S.W. 629, 186 Mo. App. 445, which in turn copied it from 22 Am. Eng. Ency. Law, 1294. This was a civil case. On page 90 of Words Phrases above referred to there seems to be recognized a distinction in the meaning of the term "prima facie" when used in a criminal case. There is good reason for a distinction. In a civil case a preponderance of the evidence only is necessary, whereas in a criminal case the accused starts out with a presumption of innocence which must be overcome by evidence beyond a reasonable doubt. In addition to the authorities cited in our original opinion as to proper charge upon the subject in a criminal case we refer to Walden v. State, 100 Tex.Crim. R.,272 S.W. 139.
We have again examined the evidence closely. The jury would have been warranted in reaching the conclusion that appellant was using the liquor more as a beverage than as medicine. Under these circumstances the court should have responded to the objections to the charge and made it clear to the jury that although appellant might be using the liquor as a beverage such fact would not authorize a conviction for possessing it for the purpose of sale.
The motion for rehearing is overruled.
Overruled.