The following is the declaration of counsel to which reference is made in the original opinion:
"The Legislature of the State of Texas, in which you gentlemen have representation, so declared that is the law and has declared that more than one quart is ample evidence to prove conclusively that it was for the purpose of sale, conclusively, unless rebutted and explained, conclusive evidence when it stands alone and unrebutted."
The sole point made against the argument is the claim that it is an indirect reference to the failure of the appellant to testify in his own behalf, therefore violative of article 710, C. C. P. From the bill, it appears that at the time of his arrest there were no persons present save the officers who testified in behalf of the state, the appellant (A. L. Cope) and his brother (M. K. Cope). M. K. Cope was under indictment for the same offense. His testimony was not available to the accused. The action of the court in failing to dismiss the indictment against M. K. Cope is not before the court for review; nor does it appear that M. K. Cope was tendered by the appellant as a witness nor that he would have given testimony explaining the purpose for which the appellant possessed the liquor. It is not shown by averment or certificate of the trial court that there were no other means available to the accused to explain the purpose for which he possessed the liquor in question.
The applicable rule is thus stated:
"The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence to which remarks may reasonably have been applied by the jury, the statute is not transgressed." (Boone v. State, 90 Tex.Crim. Rep..)
In making the remarks, counsel did not offend against the statute. *Page 235 However, we are not to be understood as approving the language used in the argument.
"Conclusive" has been judicially interpreted as "decisive; irrefutable; uncontrovertible." State v. Brandenberger,130 N.W. 1065, 151 Iowa 197; State v. Kaufman, 108 N.W. 246,20 S.D. 620; In re Woodruff, 76 A. 294, 83 Conn. 330; Covington County v. Fite, 82 So. 308, 120 Miss. 421. There is a fundamental difference between "conclusive evidence" and "prima facie evidence". The Legislature has not undertaken, in article 671, P. C., to declare that proof that one possesses more than a quart of intoxicating liquor is conclusive evidence that the liquor is possessed for the purpose of sale. It is made prima facie evidence, that is, evidence which, if believed by the jury, will warrant them in concluding that the liquor is possessed for sale. The decision of the effect of the testimony is for the jury to make, guided by the charge of the court, and keeping in mind their power of passing on the credibility of the witnesses, the weight of the testimony and the presumption of innocence. Wigmore on Evidence, 2nd Ed., vol. 2, page 1057.
In the present case, the evidence of the possession of more than a quart of intoxicating liquor is definite and undisputed, and the instructions given the jury by the court are not subject to exception, but are in accord with the interpretation of article 671, P. C., relating to "prima facie evidence", as shown in many of the decisions of this court. Among them are Newton v. State, 98 Tex.Crim. Rep., 267 S.W. 272; Stoneham v. State, 99 Tex.Crim. Rep., 268 S.W. 156; Reynosa v. State, 100 Tex.Crim. Rep., 272 S.W. 452, and other cases collated in Vernon's Ann. Tex. P. C., 1925, under art. 671, p. 471-472, and the 1930 Supplement thereto, page 46. See also Louis v. State, 102 Tex.Crim. Rep.; Jackson v. State, 103 Tex.Crim. Rep.; Johnson v. State,112 Tex. Crim. 528; Ratliff v. State, 25 S.W.2d 343.
The motion for rehearing is overruled.
Overruled.