There were two counts in the indictment, the second charging the possession of intoxicating liquor for purposes of sale. Attention is called to the fact that the court only submitted said second count, and that the verdict of the jury found appellant guilty of such possession. The judgment and sentence are for the transportation of such liquor. The judgment and sentence will be reformed to conform to the verdict. Sterling v. State, 103 Tex.Crim. Rep.; Brooks v. State,105 Tex. Crim. 379; Cobb v. State, 274 S.W. Rep. 153. Some expressions in our opinion regarding appellant's guilt of transportation will be read in the light of this statement, but no difference arises in the reasoning or conclusions reached in said opinion. Appellant had in his hand when stopped by the sheriff a grip containing several gallons of whisky and alcohol. Such possession made out a prima facie case of guilt under our statute. No testimony showed that appellant had the liquor for any purpose other than sale, save the theory advanced by him in his testimony, that is, that the grip belonged to another man who asked appellant to carry it from the train out to an automobile. The charge of the court fully presented the defensive issue, based on this claim, and a special charge was given in line with said claim.
Not being able to agree with the contentions made by appellant, the motion for rehearing will be overruled.
Overruled.
OPINION ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.