Appellant, through his counsel, forcefully argues that the charge in the present case offends against the general rule forbidding the court to instruct the jury that when the State has proved the prohibitive act the accused, intending to excuse or justify, must introduce evidence to that end. See Jones v. State, 13 Tex.Crim. Rep.; Dubose v. State, 10 Texas Crim. App., 230; Art. 51, C.C.P. In our judgment, a different rule controls the present case. It has often been held in cases involving violations of the laws prohibiting the liquor traffic that the principle relied upon by the appellant is sound and in a proper case should prevail. See Jones v. State, 257 S.W. Rep., 895; Clevenger v. State, 255 S.W. Rep., 622; Simpson v. State,93 Tex. Crim. 303; Chance v. State, 210 S.W. Rep., 209; Cowley v. State, 72 Tex.Crim. Rep.; Scott v. State,70 Tex. Crim. 59; Ratliff v. State, 78 S.W. Rep., 936. Under some of the statutes in this State the rule has no application. For example, Art. 1009 P.C., declares in substance that in assault cases where the injury is caused by violence, the intent to injure is presumed unless the absence of such intent is revealed. In a proper case, a charge containing the substance of the statute has been held proper. See McConnell v. State,25 Tex. Crim. 329; McKay v. State, 44 Texas Rep., 43; Atkins v. State, 11 Texas Crim. App., 8; Floyd v. State, 29 Texas Crim. App., 341; Harper v. State, 84 Tex.Crim. Rep.; Thompson v. State, 89 S.W. Rep., 1081. When no injury was inflicted, however, a charge that the intent to injure is presumed has been held improper. Tubbs v. State, 95 S.W. Rep., 113. The instruction in the present case is in substance that proof by the State of possession of more than one quart of intoxicating liquor upon the part of the accused shall be prima facie evidence of his guilt, but he shall have the right to introduce evidence showing the legality of his possession.
As stated in the original opinion, the power of the Legislature to declare that proof of certain stated conditions shall be prima facie evidence of a violation of the law has been repeatedly upheld, and in this State where such legislative authority has been exercised, this court has approved a charge like the one in question. In Floeck's case, 34 Tex.Crim. Rep., the accused was unlawfully pursuing the occupation of selling intoxicating liquor. Upon the trial the court instructed the jury that it had been declared by statute that the payment of the United States Special Tax as a seller of such liquors shall be prima facie evidence that the person paying the tax is engaged in such business. The action of the trial court was upheld and the judgment of conviction affirmed. In O'Brien's case,90 Tex. Crim. 276, the propriety of instructing the jury under the provisions of Art. 640c, P.C., to the effect that the desertion of the wife, *Page 586 etc., should be prima facie evidence that such desertion is wilful has been held legal.
We confess our inability to distinguish the facts of the present case from those in which the charge that a given state of facts would be prima facie evidence has been held proper and approved.
In the present case, the right of the accused to the presumption of innocence until his guilt was established by legal evidence beyond a reasonably doubt was carefully guarded, and in addition thereto, the jury was informed that the burden of proof was upon the State. Taken as a whole, we think the charge fully recognized the limitations which the law places upon the term "prima facie" evidence.
The meaning of the term "prima facie" evidence was considered by the court and quotations given from the decisions of other states interpreting that phrase in Floeck's case, supra. The reasoning of the court and the citation of authority is condensed in the syllabus in these words:
"Prima facie" evidence is merely proof of the case upon which the jury may find a verdict, unless rebuted by other evidence. In other words, prima facie evidence is not conclusive, but such as may be overcome by evidence to the contrary; and such evidence is to be weighed together with the other evidence, and in connection with the reasonable doubt and presumption of innocence which obtain in all criminal trials."
In a proper case, upon request, doubtless the trial court would restrict the jury in the meaning of "prima facie" evidence. See Ayers v. State, 21 Texas Crim. App., 399.
Of the other points to which the motion is addressed proper disposition has heretofore been made, and further discussion of them is deemed unnecessary.
The motion is overruled.
Overruled.