Appellant is convicted for possessing intoxicating liquor for the purpose of sale, punishment assessed being one year in the penitentiary.
Officers had received information which caused them to be on watch late at night at a gate on a road leading to Uvalde. An automobile traveling toward the city stopped at this gate; appellant got out to open it. The car belonged to and was being driven by one Coon. Some fifteen quarts of corn whisky in a keg was found in the car, also a small fruit jar about half full of whisky. Both Coon and appellant were separately indicted for possessing the liquor for the purpose of sale.
In Chapter 22, Sec. 2e, 2d C.S., 38th Legislature, it is provided that whenever possession of intoxicating liquor for the purpose of sale is made unlawful that proof of the possession of more than one quart shall be prima facie evidence of guilt, but that the defendant shall have the right to introduce evidence showing the legality of such possession. The court gave this statute in his charge. Objection thereto was urged for various reasons, the principal one being that it was a charge upon the weight of the evidence and invaded the province of the jury.
There can be no doubt we think of the power of the legislature to enact the law in question. It was the exercise of a right to change the rules of evidence within proper limits. From a "Case Note" under North Carolina v. Barrett (138 N.C. 630), 1 L.R.A. (New Series), 626, we quote:
"The power of the legislature to pass a statute making the possession of a certain amount of intoxicating liquor prima facie evidence of an intent to violate the law against illegal sales is supported by the authorities and text-book writers, and is based upon the right of the legislature to change the rules of evidence, and upon the doctrine that an accused person has no vested right in any presumption or rule of evidence which the lawmaking power cannot alter, within certain limits. When possession is shown, then the legal presumption of guilt *Page 584 arises, and it devolves upon the accused to give a satisfactory explanation. Such a statute does not make it obligatory upon the jury to convict after the presumption of such proof, but it shifts upon the accused the duty to explain. But statutes which undertake to make evidence of certain facts absolute or conclusive proof of guilty are unconstitutional; those, however, which merely declare statutory presumption affecting the burden of proof are valid."
Many authorities will be found collated in the notes under this case as reported in L.R.A., and also under McComb v. Hill, 39 L.R.A., 534 (New Series); see, also Joyce v. Sheppard,64 Kan. 451, 67 P. 870; Parsons v. State, 61 Neb. 244, 85 N.W. 65. Practically the same question was considered by this court in Floeck v. State, 34 Tex.Crim. Rep., 30 S.W. 794, it being there held that the Legislature had a right to enact such a statute, and that no error was committed in giving the same in charge to the jury. The Floeck case was followed with approval in O'Brien v. State, 90 Tex.Crim. Rep., 234 S.W. 668. The charge in the present case is not subject to the objection that it contains an absolute presumption against appellant under a certain state of facts, but follows the statute and advised the jury in effect that the presumption arising from certain facts may be rebutted.
The charge complained of is further assailed upon the ground that it was inapplicable under the facts proven, and assumed that appellant was in possession of the liquor in question. Appellant made no effort to explain possession, but denied possession, guilty knowledge or participation of any kind. He claimed to have been only a guest of Coon, riding in his automobile at his invitation. The learned trial judge instructed upon the issue thus raised by a charge upon principals, and by an additional charge from appellant's standpoint which seems to have protected him from every angle. He required the jury to find from the evidence beyond a reasonable doubt that appellant was acting as a principal and as such had possession of the liquor for the purpose of sale before a conviction could result; the jury was further informed that appellant's presence alone would not make him a principal, and that if he was invited by Coon to ride in the automobile, and that Coon got the whisky without appellant's knowledge of the unlawful intent of Coon, or even if he knew that Coon went to get the liquor but that appellant did nothing to assist or encourage him other than simply to ride out and back with him, then appellant could not be convicted. In view of the instructions fairly presenting the defensive issues we think the criticism of the charge complained of untenable.
Motion to quash the indictment was presented, but we fail to discover any vice in it.
The judgment is affirmed.
Affirmed. *Page 585
ON REHEARING.