The appellant was convicted in the District Court of Montague County for the offense of possession of intoxicating liquor for the purpose of sale and his punishment *Page 526 assessed at confinement in the penitentiary for a term of one year.
Appellant very earnestly contends in his brief and oral argument before this court that the court erred in refusing to instruct a verdict of not guilty because the evidence is wholly insufficient to show that he possessed the wine in question for any other purpose than for his own personal use. The record discloses that appellant was found in possession of ten gallons of grape wine in the fall of 1923 and that he was found in possession of approximately forty gallons of blackberry wine in the spring or summer of 1923. The court only submitted the question of the possession of the grape wine to the jury for its consideration. The record further discloses that at the time the grape wine was found the sheriff testified that he also found two more barrels on the premises at that time, one of these was a forty or fifty gallon barrel and the other was about a thirty-gallon barrel and that they seemed to have contained wine. It smelled like wine, and that he examined the barrels and that the barrels were in a little house right back of the dwelling house, in a little smokehouse or outhouse, and that one of the empty barrels had a faucet, but one did not. That he found a tin funnel and an ordinary drinking glass. It is also in testimony that the wine so found was intoxicating.
The appellant testified in his own behalf and stated that he did not sell any of the wine, that he made it for his own use and never had any notion of selling it and that he didn't know it was against the law to make wine. That the officers searched his place along in the spring and told him they were looking for a still and he told them to go ahead and search anywhere they wanted to and he went with the officers to let them in the smokehouse but that when he got there other officers had already broken in and that they found wine at that time in his smokehouse and they told him they were looking for a still and he told them to go ahead and look and then he said to the officers "You are not looking for wine?" and they said no and he then figured it was not against the law, and in the fall he made some more wine, being that for which he is convicted. He also testified that one of the State's witnesses was mistaken about there being two barrels of wine.
It occurs to us that under the facts there can be no question but that the issues were sharply drawn as to whether or not the appellant had the wine in question for the purpose of sale. Without dispute he had on hand more than a quart and under *Page 527 the Statute proof of this fact makes the possession of such a quantity prima facie evidence that he had it for the purpose of sale. It is true, of course, that he is entitled to offer testimony tending to overcome the prima facie case thus made by the State, but the weight of the testimony and the credibility to be given to the witnesses are matters left entirely to the discretion of the jury trying the case. It is well settled in this State that the jury is not bound to believe the appellant's testimony although it be uncontradicted. Sullivan v. State, 273 S.W. 566, and cases there cited. To hold that as a matter of law the appellant in this case is not shown to be guilty would be in effect to abrogate the plain terms of the Statute which makes the possession of more than a quart of intoxicating liquor prima facie evidence that its possession is for the purpose of sale.
In addition to what has been said, we do not deem it amiss to add that under all the testimony introduced on the trial of this case, we think the jury was well within its rights in refusing to believe that the appellant was making this wine with no intent to sell it. Neither can we agree with appellant's contention that the testimony failed to show that the grape wine was intoxicating. In testifying on this question Walker, the sheriff of Montague County, used this language:
"I have had sufficient experience in drinking wine and seeing wine and observing the effects of wine to know whether or not wine is intoxicating liquor. Yes, sir; the wine on those premises at that time was intoxicating."
It is true that on the contrary, two of appellant's neighbors testified that they drank some of the wine, one about six ounces and the other about nine or ten ounces, and stated that in their opinion it was not intoxicating. It is well settled in this State that matters of this character are proper questions for the decision of the jury as to make it unnecessary to further write concerning this matter.
Appellant's counsel in oral argument insists that the court was in error in failing to designate to the jury in his charge as to which offense their verdict should be based upon. On this question, the proof was undisputed that the officers found blackberry wine at appellant's home in the spring or summer of 1923, and that they found grape wine in the fall or winter of that year. In submitting the question to the jury the court instructed the jury to the effect that they could convict appellant if he possessed grape wine on or about the 4th day of *Page 528 December, 1923, and did not submit for their consideration the question of his possession of blackberry wine at all.
The record discloses that the court also gave a special charge to the effect that if the jury believed from the evidence beyond a reasonable doubt that the defendant possessed grape wine capable of producing intoxication in Montague County on or about the 4th day of December, 1923, yet if the jury believed from the evidence that the same was not possessed for the purpose of sale or if they had a reasonable doubt thereof to acquit the defendant. We think these charges clearly protected appellant against a conviction for more than one offense and were entirely sufficient to direct the jury's mind to the fact that he was being tried only for the possession of the grape wine.
Appellant also complains at the court's action in charging on the presumption arising from the possession of more than a quart of wine. The only objection we find in the record to this charge is that it is a charge on the weight of the evidence and should not have been given. This objection to the charge is insufficient to point out any error in the giving of the same.
Finding no error in the record, it is our opinion that the judgment should be in all things affirmed. Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.