As stated in our original opinion the first count of the indictment was bad under the holding in the case of Offield v. State, 75 S.W.2d 882. Under the same authority the second count was bad in so far as it alleged the possession for sale of "beer." So far as the present indictment is concerned the averment as to "beer" may be disregarded as surplusage. As to such liquor no offense is charged, and it may be eliminated without impairment of the indictment as charging the possession of whisky for the purpose of sale. Branch's Ann. Tex. P.C., § 497, and cases cited. See also Allen v. State, 116 Tex. Crim. 15,32 S.W.2d 854.
The court charged the jury that the possession of intoxicating liquor for the purpose of sale was an offense. Immediately following they were told that "whisky" was an intoxicating liquor, and that the possession of more than a quart of intoxicating liquor was prima facie evidence of guilt. Appellant excepted to such charge unless the court instructed the jury that such rule as to prima facie evidence did not apply to "beer." It is appellant's contention that a failure to give such instruction was error in view of the manner in which the case was submitted to the jury. If there had been any evidence upon which a claim could be predicated that the whisky was possessed for an innocent purpose, or even if more than the minimum punishment had been inflicted, we could see some reason for urging that the failure to give the suggested instruction might have resulted in injury to appellant, but under the present record we are at a loss to discover how it could possibly have had such effect. The possession by appellant of the whisky in a large quantity in his place of *Page 576 business and in salable containers was in no wise disputed or explained. There being more than a quart, the statute fixed the prima facie purpose for which it was possessed. Regardless of the beer and whether it was or was not intoxicating, no honest jury, under the undisputed evidence as to the whisky, could have returned any other verdict than was rendered here. The punishment was fixed at the minimum. We find no warrant for holding that the proof as to the presence of the beer or the manner of the submission of the case to the jury brought about the verdict.
The motion for rehearing is overruled.
Overruled.
MORROW, P.J., absent.