ON MOTION FOR REHEARING.
BEAUCHAMP, Judge.Three grounds are set out in appellant’s motion for rehearing, the first of which deals with a matter discussed in the original opinion. Without restating the position there taken, we concur in the conclusion reached.
The second ground for rehearing complains of the failure of this court to sustain appellant’s bill of exception number three which reflects an exception to the court’s charge, as follows:
“Such possession, however, is only prima facie evidence of guilt, or in other words merely raises a legal presumption of guilt, which presumption may be overcome by evidence showing that such possession was not for the purpose of sale.”
Appellant relies on the case of Ratliff v. State, 25 S. W. (2d) 343, and in his brief presents the following charge, of which Judge Morrow in the original opinion said that it was “an unhappy choice of language”:
“Prima facie evidence means evidence which is sufficient to establish the facts, unless rebutted; evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced.”
*394However, upon the State’s motion for rehearing Judge Hawkins clearly makes the distinction between a definition of “prima facie evidence” as used by the courts in criminal cases and that used by courts in civil cases. In the former in order to make out a prima facie case the State must produce evidence sufficient to establish the fact “beyond a reasonable doubt,” unless rebutted. In a civil case it would be sufficient to establish the fact “by a, preponderance of the evidence.” In the Ratliff case it will be observed that the court failed to instruct the jury that the fact must be established “beyond a reasonable doubt,” and therein was the error.
Again reliance is had upon Uptmore v. State, 32 S. W. (2d) 474, wherein the following language is used:
“What is meant by ‘prima facie evidence’ is sufficient evidence and can be overthrown only by rebutting evidence introduced on the other side. It is a state of facts which entitles the State to have the case go to the jury, and it is that amount of evidence which would be sufficient to counterbalance the general presumption of innocence and warrant a conviction if not encountered and controlled by evidence tending to contradict it and render it improbable or to prove facts inconsistent with it.”
The error in the language of this case may be questioned in the same way as the Ratliff case. It is true that the charge said, “that it is a state of facts which entitles the State to have the case go to the jury,” but the charge does not inform the jury what that state of fact is and left the jury to reach their own conclusion of law. It further defines it as “sufficient to counterbalance the general presumption of innocence,” etc., but does not say what would be sufficient.
In the instant case the charge above quoted applies the law to the undisputed facts, as he had a right to do, and said that it was sufficient to merely raise a legal presumption of guilt and then told them that it may be overcome by evidence showing that such possession was not for the purpose of sale. He is not undertaking to apply a legal definition so that the jury may find that there was prima facie evidence as in the two cases relied upon. The court itself found that to be true under the undisputed facts and thus applied the law, giving to the appellant a right to rebut the legal presumption which he instructed the jury had been raised. He did not use language *395that would throw any burden upon appellant, but left it wholly with the jury, which we think was proper.
The motion for rehearing is overruled.