Appellant urges that the evidence is insufficient to show that the whiskey found in his car was possessed by him for the purpose of sale. The quantity of whiskey found was much in excess of a quart, and the question of the truthfulness and sufficiency of the explanation made by appellant, — to overcome the presumption of guilt arising from the fact of such possession, was for the jury. Appellant said he was transporting the whiskey at the instance of one Fuller to whom the same belonged, and that he had no interest in it and did not have it for sale. Unfortunately for him he introduced no evidence to corroborate his statement. He said Fuller was a resident of the vicinity, but he did not call Fuller to testify. We think the testimony sufficient to warrant the finding of the jury. They are not compelled to accept as true the explanation offered by appellant. *Page 474
The requested charge submitting the law of prima facie evidence was almost in exactly the same language as the main charge given the jury, and it was not error to refuse same. The record shows that the affidavit for search warrant and search warrant were not introduced in evidence before the jury, but were only considered by the court.
In as much as the defendant testified fully to the fact of the search and the finding of the whiskey in his car by the officers, under authorities too numerous to cite, but to be found in recent decisions of this court, the question of the sufficiency of the affidavit and information to authorize the search will be held of no avail to the accused.
Believing the case properly decided, the motion for rehearing will be overruled.
Overruled.