The appellant was convicted in the district court of Bowie County for the offense of possessing liquor and his punishment assessed at confinement in the penitentiary for a term of two years.
The following charge was given to the jury:
"You are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant had in his possession as aforesaid, intoxicating liquor of more than one quart, then the law presumes that such possession, if any, was for the purpose of sale."
Appellant testified that he did not know what was in the kegs that were found in the house where he roomed and that he merely took them out of the house in order to destroy them and that this was the extent of his possession.
The charge nowhere submitted to the jury the question as to whether the whiskey was possessed for sale, except in the first paragraph and in that the jury is merely told that if appellant had in his possession intoxicating liquor for the purpose of sale then to find the defendant guilty as charged in the indictment. It seems that the court proceeded upon the theory that possession of more than a quart of whiskey was conclusive proof of guilt under a charge of possession for the purpose of sale. It has been held that it is necessary that the purpose for which liquor is possessed be submitted to the jury. Pettit v. State, 90 Tex.Crim. Rep.. Veasey v. State,260 S.W. 1055. We think in this case that the trial court misconceived the effect of Section 2e, Chapter 22, Acts 38th Legislature Second Called Session, in which it is declared that the possession of more than a quart of intoxicating liquor shall be prima facie evidence of guilt. If this principle is charged at all, certainly all of the statute ought to be charged and in the language of the statute. The validity of that statute has been upheld by this court upon the express ground that it did not reflect the purpose of the Legislature to declare that the possession of more than a quart of liquor was absolute or conclusive proof of guilt, but that it was prima facie evidence. Floeck v. State, 34 Tex.Crim. Rep.. Stoneham v. State, 268 S.W. 156. Newton v. State, 267 S.W. 272.
We think it clear in the instant case that the effect of the charge complained of was to instruct the jury to convict the defendant for possession for the purpose of sale if they believe that he had in his possession liquor in quantities of more than one quart; while it was proper for the court to tell the jury that prima facie the State discharged its burden of proof when it showed that he had in his possession more than one quart of intoxicating liquor, but the charge should have gone further upon the exceptions urged to it and have told the jury the meaning in substance of prima facie evidence, and *Page 77 should have pertinently instructed them that the appellant had the right to overcome this presumption by proof.
Almost the identical question here discussed was before this court in the case of Walden v. State, No. 8776, not yet reported, and the opinion in that case sustains the views we have expressed herein.
For the error above noted, it is our opinion that the judgment should be reversed and the cause remanded.
Reversed and remanded.
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.