Appellant, in his motion for a rehearing, complains because there was no discussion in our original opinion concerning the sufficiency of the evidence to sustain the conviction. The record reveals that the appellant took the stand and admitted that the officers recovered either one hundred and eight or one hundred and thirty-six bottles of beer from his premises on the day in question; that the beer in the courtroom was the same that was taken from his premises. The State offered the county attorney and a constable in addition to a chemist to prove that said beer was intoxicating and contained more than one-half of one per cent. of alcohol by volume. Under the law in effect at the time of this prosecution, possession of more than a quart of intoxicants was prima facie evidence of possession for purpose of sale. See Section 23a of Article 1 of the Texas Liquor Control Act, prior to its amendment in 1937.
There was ample evidence presented to sustain the jury's finding of appellant's guilt.
He also insists that we erred in our original opinion in holding admissible the testimony of Jack Pullens, a witness for the State, showing what was on one of the labels of a bottle of beer alleged to have been taken from appellant's premises. The basis for his contention is that labels are no evidence of contents. We held, in our original opinion, that even if such admission in evidence was error, it would have been cured by the testimony of the chemist who testified as to the alcoholic contents of the beer. It is now his position that since the chemist got the beer from the clerk's office, it was never definitely established as the same which the officers got from appellant's premises, and that said chemist's testimony could not, therefore, be considered. We note from the testimony of Gene Eagle, a deputy sheriff, that he was with the officers when they searched the appellant's premises. That he gave Mr. Cude (the chemist) four of the bottles, part of the same beer taken from appellant. Moreover, we note, as above, that appellant admitted that the beer in the courtroom was his and two State's witnesses aside from the chemist testified that it was intoxicating. His contention in this respect is therefore overruled. *Page 403
The motion for rehearing will be overruled.
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.