In his motion for rehearing for the first time appellant calls attention to the fact that while he is charged with possession for sale of liquor containing in excess of one per cent of alcohol by volume, in the court's charge to the jury he told them that our statutes provide that the term "intoxicating liquor" shall include any potable liquor containing in excess of one per cent alcohol by volume; also that in said charge the jury were told that wherever possession for the purpose of sale is made unlawful the possession of more than one quart of potable liquor *Page 649 containing in excess of one per cent of alcohol by volume, is prima facie evidence that said person possessed same for the purpose of sale, etc. Appellant contends in his motion that the giving of this charge was such misstatement of the law and in such violation of his rights as to make it fundamental error, and that therefore this case should be reversed for the giving of such charge, even though no exception was taken to same on this ground and said error was not complained of in the motion for new trial. Art. 658, C. C. P., provides in terms that in felony cases the judge shall deliver a written charge distinctly setting forth the law applicable to the case. Mr. Vernon cites hundreds of cases in his notes under said article of the statute supporting the proposition that by the expression "the law applicable to the case" is meant the law applicable to the case as made by the proof — the law applicable to the pleadings and the evidence.
In the notes under Art. 666, 1925 Vernon's Ann. C. C. P., appears the following statement, in substance, that if an error in the charge be not excepted to at the proper time during the trial, the conviction will not be disturbed unless it be an error of fundamental nature; this is, be a material misdirection of the law applicable to the case and be such affirmative error, or such error of omission as is calculated, under all the circumstances of the case, to injure the rights of the defendant, in which case the conviction should be set aside. Numerous authorities are cited in support of this proposition. Giving application to the principle announced, under the facts of the instant case we have the following: The accused was charged with possession for the purpose of sale liquor which contained more than one per cent of alcohol by volume, but which was not shown by proof to be intoxicating. We have held that in such case it is erroneous to give in charge to the jury the provisions of Art. 671, P. C., which authorizes a charge in an appropriate case to the effect that possession of more than a quart of intoxicating liquor may be taken as prima facie evidence of the fact that such possession is for the purpose of sale. Johnson v. State, 17 S.W. Rep. 2d 1074; Leming v. State, 17 S.W. Rep. 2d 1075. The giving of said charge in this case was not excepted to, nor was the proposition that giving same was erroneous, advanced in the motion for new trial.
We are constrained to the view that the giving of the charge under the facts of this case was fundamentally erroneous. While appellant did not admit his possession of the potable liquor described *Page 650 in the indictment, the State's testimony was sufficient to justify the jury in believing him in possession of same. No witness testified to any sale of liquor by appellant, and the inference of possession for sale rested solely upon the quantity of liquor possessed, aided by slight circumstances otherwise. It being then established by the State's testimony that appellant possessed one hundred bottles of said potable liquor, a quantity considerably in excess of one quart, the court's instruction to the jury that possession by the appellant of more than a quart of such liquor would be prima facie evidence of the fact that he possessed it for purposes of sale, appears to us to be a misstatement of the law of such materiality as to render it exceedingly probable that the rights of the accused were affected injuriously thereby. So believing, the motion for rehearing will be granted, the judgment of conviction set aside, and the judgment will now be reversed and the cause remanded.
Reversed and remanded.