In his motion for rehearing appellant contends that he was tried for the transportation of beer within a dry area as well as for the possession of such beer for the purpose of sale therein, and that the court charged on both such possession for the purpose of sale and the unlawful transportation thereof.
We find from a perusal of the statement of facts that the appellant's defense herein was that he possessed the thirty cases of beer for his own use; and we also find that the defendant's Special Requested Charge No. 2 reads as follows: 'Gentlemen of the jury, you are instructed that it is lawful for a man to transport an alcoholic beverage, to wit: beer, from a place where the sale of such beer is legal to a dry territory, provided the person is transporting the beer for his own use. In this connection, you are further instructed that the transporation of more than 24 12-oz. Bottles or cans of beer is prima facie evidence that said beer is not being transported for a person's own use. Such transportation, however, is only prima facie evidence that it was not being transported for the person's own use. This evidence can be rebutted by evidence showing that such transportation of said beer was for the person's own use.'
Doubtless, in response to said requested instruction the court embodied in his charge practically the same language as that which was requested in the above-quoted Special Requested Charge No. 2.
It is also to be noted that the court further charged the jury that if they believed, or had a reasonable doubt thereof, that appellant possessed this alcoholic beverage for his own use and consumption, then they should find him not guilty.
It seems to us that we were correct in our original opinion when we held that the requested charge embodied the same general principle which appellant claims he now excepted and objected to. Under the circumstances in which this case finally finds itself, we think the court was correct in the charge given, which is practically the same as that requested by the appellant.
The motion for rehearing will therefore be overruled. *Page 891