Conviction is for possessing intoxicating liquor for the purpose of sale, punishment fixed at one year in the penitentiary.
Appellant rented a building in Fort Worth in the front of which he ran a barber shop. Immediately back of the barber shop was a bath room, and in the rear of that was a domino room. At the time the officers searched the premises they claimed appellant told them he controlled and ran the entire building. In the domino room they found a post which appeared to be supporting a shelf on which soda water bottles were stacked but the post could be turned aside exposing an aperture in the floor in which a large quantity of whiskey was found. Under the bath tub was a whiskey glass, and under the linoleum on the bath room floor the officers discovered a trap door, under which a bottle containing a small quantity of whiskey was also found. Appellant testified that he had rented the entire building, but had subleased the domino room to a man named McGrew and claimed that McGrew was present at the time the officers made the search, but had since left the country. Appellant denied possession of the whiskey found in the domino room and bath room, and denied all knowledge of its presence.
In the first paragraph of the charge, the court instructed the jury and defined the offense in accord with the statute, making it clear that the gravamen of the offense was the possession of intoxicating liquor for the purpose of sale.
In the same paragraph of the charge, the court undertook to give to the jury the substance of Art. 671 P. C. (1925), in which it is declared that "proof of the possession of more than one quart of intoxicating liquor shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such possession." The part of the charge in which an instruction upon the effect of this statute was attempted was inaccurate in that it left out the words "prima facie."
The second paragraph of the charge we quote as follows:
"Now, if you find and believe from the evidence beyond a reasonable doubt that the defendant did directly or indirectly in the County of Tarrant and State of Texas on or about the date alleged in the indictment read to you, possess spirituous, intoxicating liquor for the purpose of sale, then you will find him guilty of the offense charged and assess his punishment at *Page 558 confinement in the state penitentiary for some period of years not less than one nor more than five, in your discretion."
In the third paragraph was a comprehensive and approved charge upon circumstantial evidence.
The principal question upon appeal is that growing out of the omission of the words "prima facie" in the paragraph of the charge mentioned. This omission was improper, and unless harmless under the rule embraced in Art. 666, C. C. P. (old Art. 743), the error would be substantial. The article mentioned provides in substance that an inaccuracy in the instruction to the jury shall not authorize a reversal of the judgment of conviction unless it appear from the record that it was calculated to injure the rights of the accused, or unless the record discloses that the trial had not been a fair and impartial one.
Aside from the prima facie inference authorized by the statute mentioned, the circumstances revealed by the present record seem very cogently to support the theory of the state that the liquor in question was possessed for the purpose of sale. The controverted issue was not the purpose for which it was possessed but whether appellant was its possessor. He had been the lessee and in possession of the building in question for eight months. The length of the building was ninety-five feet. It was his theory that his lessee, McGrew, was the possessor of the liquor and that the equipment and arrangements for selling it were the result of McGrew's activities. If McGrew was in fact engaged in the business of selling liquor in the house which was rented from the appellant and occupied by both of them, we think the jury was authorized from the circumstances to determine not only that the appellant knew of its presence but that his conduct towards it was that of a principal offender.
According to the appellant and the state's witnesses there were other barbers in the barber shop at the time the search was made. Their names and localities were given but they were not called as witnesses; neither was the owner of the building summoned as a witness. The appellant's statement that McGrew was present at the time of the search was in conflict with the testimony of the officers, and his companions in the building were not called to support his testimony. It was the appellant who was with the officers at the time the search was made. The evidence is deemed such as to warrant *Page 559 the jury in concluding that McGrew was in fact but a fictitious person.
Upon the question of possession, the court gave two special charges requested by the appellant, which read as follows:
"Gentlemen of the Jury: You are instructed that even though you may find and believe from the evidence that the defendant knew of the location of the whiskey in question, yet you cannot convict the defendant unless you find and believe from the evidence that he possessed it, and further, that he possessed it for the purpose of sale and that the fact of such knowledge on his part would not be evidence of guilt under the indictment."
And further:
"Gentlemen of the Jury: You are instructed that if you find and believe from the evidence beyond a reasonable doubt that the whiskey was found on the premises occupied by the defendant on the occasion testified about, yet if you further find and believe that the same was not in the possession of the defendant as the term possession has been defined in special charge No. 2, or you have a reasonable doubt as to whether it was in his possession or not, you will acquit the defendant."
In view of the record and the charges given at the request of the appellant, and the charge on circumstantial evidence embraced in the court's main charge, we are of the opinion that the fault in the first paragraph of the charge to which we have adverted was not of a nature which, in view of Art. 666, C. C. P., supra (old code, Art. 743), will authorize a reversal of the judgment. It is therefore affirmed.
Affirmed.
ON MOTION FOR REHEARING.