*1 testing testimony. pose of Its remoteness character witness’ at was not a matter issue. original opinion, adhere to the motion will therefore overruled. Spencer
Charles v. State. 24480. 1950. February No. Rehearing Denied March *2 McNeil, Brown, Burks & Burton S. Burks Clifford Lubbock, appellant. Austin, Attorney, George Blackburn, for the state. P. State’s WOODLEY, Judge. charged possession sale
Appellant of beer for was guilty County, area. A found him in Lubbock imprison- punishment at a and assessed his fine $100 county jail in for months. ment six agents Liquor testimony the Texas shows that two warrant, sheriff, deputy рossession in Board and a Control intending home, evidently knocked on the door-of agents knocked on the One of search same for intoxicants. said, “Well, eating, appellant, at a table who was front door agent in; caught went you time.” The have me this cоme on open, sitting The door was on the floor. and the beer was agent closed, and from where the was but the screen door entering appellant the door. standing, could see before he floor. of beer on the 168 twelve-ounce bottles There wеre door, agent back deputy sheriff knocked other boys.” in, “There it is and said: them invited lady, as person present, as well There was at least one of the house the front door who came to another individual appel- going deputy heard sheriff on. The the search was while caught got time.” in; this say, you have me lant “Come on The fore- a witness. the stand as Appellant failed to take agreement that Lubbock going an is all evidence save County “dry area.” was a follows: read as
Paragraphs court’s 2 and 3 of the possession charged of law as a matter further “2. You are containers, their or twenty-four twelve-ounce of more than containing excess beverage, alcohol equivalent of alcoholic volume, than four and not more percent by one оf one-half of beer, facie evidence weight, to-wit, is percent by alcoholic possession such whose intention beverage found, sell the same. ‘prima
“3. The words facie evidence’ used in this possession, you find possession, means merely such legal presumption presumption raises a which showing may that such overcome of sale.” Appellant objections filed his written to said follows: “* * * objects excepts paragraph 2. The defendant charge, especially portion reading thereof as fоl-
lows: ‘. . . is per- facie evidence of the intention of the beverage found, son in whose alcoholic same,’ sell because the same is not accordance with the prejudicial right; and is statute the defendant’s it shifts *3 proof contrary the of is law in burden and thе statute says possession, any, prima such is facie evidence that purpose possessed it was for the of sale. objects excepts “3. The defendant paragraph and 3 of the charge especially and prima Court’s the definition of faciе evi-
dence, complete the not same is does not include the elements requires of facie evidence that law the proof shifts the burden from of the State the defendant and implies duty a of the defendant to introduce evidence presumption, rebutting to rebut the under the law whereas such may by evidence come from the evidence introduced either the connection, says State or defendant. In this the the defendant Specially Requested Charge the Defendant’s No. which grant, given Court refused to should of bе instead * * charge portion of of the herein special charge upon Appellant’s requested subject reads: OF THE JURY: “GENTLEMEN charged pos- a “You are further as matter of law that containers, equiva- than 24
session of more twelve-ounce or their beverage containing in lent an alcoholic excess of of one-half volume, by percent by percent and not than of one more four beer, weight, pos- prima facie evidence that is to-wit: purpose sale. sessed for the of merely proof uрon a is of case which
“Prima facie evidence verdict, by may jury find a other evidence. unless rebutted words, prima In facie evidence is such other conclusive but contrary; may evidence to the evi- overcome such together weighed and in evidenсe dence is to be 430 presumption doubt in-
connection reasonable of in all criminal nocence obtains trials.” which charge Exceptions Bill One deals with the court’s Number evidence, charge, “prima exception facie” requested upon subjеct. special refusal of the Paragraph possession The court’s instruction in is twenty-four is than of more prima twelve-ounce containers beer facie the intention of the whose evidence of possession it is found to sell the same. C., provides (b), 667-25 P.
Art. such dry аn amount of beer in a area facie shall be purpose area. area of sale being dry, admittedly in the we see no material difference given statutory provision. understand, appellant’s Paragraph we criticism of As legal expression presumption
directed to the use “raises guilt.” jury could not be misled believe that term, appellant from and that no harm resulted to use court, Paragraph 1 instructed use. case, criminal jury in this as in all other to the effect that cases, prove proof state to thе satis- burden of beyond doubt that faction of the possessed reasonable charged, and that of sale as the beer for *4 proven to the satis- unless the state assumed this burden facts, beyond jury that a reasonable doubt faction of the duty jurors to in favor resolvе that doubt would be their it Paragraph acquit' In 3 court him. the of the defendant may legal presumption referred to be over- plain that the makes showing not for the that such was evidence come purpose of sale. guilt” “presumption in was used connection
The term of “prima facie evidence.” the term the definition of guilt” used, “presumption “presumption that of soAs substantially purpose possessed of mean it for the sale” was State, 32, 2d Harkey R. v. 142 Tex. Cr. 150 S. W. same. See 808; 390, State, 154 S. 2d 650. 142 Tex. Cr. R. W. and Bell v. 420, State, R. Tex. 159 W. Lollar v. 143 Cr. S. The casе of announcing may con- 130, far as it construed as 2d in so expressed, trary here is overruled. conclusion that
431 Judge State, Christian, Harkey supra, speaking In v. for this court, said: only
“Substantially
quoted
difference between the
requested instruction,
refused,
charge
of the
which was
subject
of
was
the court
that
court advised
jury
quantity
liquor
question
of
in
was
requested
facie evidence of
whereas the
instruc-
tion,
already observed,
pos-
have
would
advised the
prima
quantity
was
session
beer
facie
evidence
possessed
impressеd
sale.
are not
We
‘guilt’
charge
with the view that
the use of the word
in the
‘purpose
the court instead
the term
in
of sale’ as used
charge
requested charge,
rendered
should have
less desirable
presented by
short,
charges
appellant. In
than that
the two
рoint
question
substantially
are
the same.”
“* * *
substantially
think the
We
court’s instruction is
charge
requested
same as that
embraced
and that no
charge
presented.”
error
the refusal of such
Appellant’s exception
court’s failure to
on cir-
properly
cumstаntial evidence was
overruled. The court was
required
give
showing
such a
the beer was
present
found
home when
quantity
required
was in excess of that
under the
State,
facie evidence statute.
McDonald v.
Tex.
See
127
526,
685;
Corley
State,
Cr. R.
77 S.
2d
v.
150
Tex. Cr.
R.
2d
S. W.
Appellant’s complаint
of the court’s
failure
presumption of innocence fails to reflect error.
find no ex-
ception
charge particularly
to the court’s
addressed to such
omission,
charge.
requested
State,
and no
See Fennell v.
Tex.
R.
Cr.
“Now, gentlemen jury, briefly is the case. state’s There are three witnesses who have testified the state to Nobody any effect. denied of that.” *5 complains Exception
Bill of No. 3 as an improper appellant’s testify. comment on failure to This bill position person fails to shоw that no other was in a to contra- testimony appellant. dict qualification, supported On other hand save the court’s
by evidence, shows that at least present one at the time the officers found the home, testify. appellant’s lady d_id beer in who bill, present qualified, fails to error. Tex. Jur. See Sec. support jury’s finding The evidence is sufficient rights prejudiced ap- no error is shown that pellant. judgment affirmed. is therefore by
Opinion approved court. FOR REHEARING. ON MOTION GRAVES, Judge. again alleged
Appellant complains in motion it is his becаuse appellant’s repeated his Bill No. 3 evidences comments Brummett, testify upon of Mr. Assistant failure County Attorney. impressed correctness of our are ruling original opinion not shown said bill it is present persons at time the officers no other there were sitting on thе floor. entered H. home and found the beer Harmon, officers, there was
E. one of the testified lady present their and at time at the time of entrance by appellant, as testified to officers. statement Appellant’s made sister-in-law lived with wife testified that her also day. present afternoon them and was at house on the attorney alluded It further that the state’s testify in his in Bill No. failure to as shown defendant’s argument as follows: gentlemen
“Now, briefly case. jury, the state’s state to have testified for the There are three witnesses who any Nobody has of that.” denied effect. improper by appellant’s objected to This was testify, moved failure and counsel comment On defendant’s county attorney Thereupon said: for a mistrial. Honor, was that there what I meant that statement
“Your prоduced defendant on behalf of the no evidence that.” refute say is in direct violation
“MR BURKS:All of which we repetition given law and the instructions *6 only intensify tends to the error. And the statement improper entitled to a mistrial on account of defendant now argument refеrring improperly of counsel in to defendant’s alluding testify failure to and —.” exchange attorneys, a further of remarks
After between court, Mr. further said: well as the Burks Honor, objections “Your in addition to the that we here- have being interrupted, made I I tofore and while was intеnded to say alluding to the made to Court that he fact it had not denied was in addition direct to allusion, testify allusion to the defendant’s failure to an indirect something because he has to referred no one but the defend- deny explain ant mis- could or renew our motion that a we trial be declared.” point exception
At this court overruled the and the bill proceeds as follows: law, : I understand that much that we can’t “mr. brummett refer Notstanding to defendant’s failure take the to stand. might say, my what Mr. Burks I statement did not intend any advantage
to imрression. just take or to leave that I am summarizing produced the evidence that the State has here in along connection with the Court’s that line the Court — charged you has Honor, “MR. BURKS: May Your excuse me. we an have now exception just to the remarks that made? he He continues to refer to the matter we want the record to show we excepted that, just out remarks that he started with ago exception while as he resumed this talk. We want that.” lengthy colloquy
This bill is seems to be concerned attorneys. find, however, betwеen opening We do county attorney statement of justified herein found presence appellant than others and the officers at appel- scene of the search. It will be seen from the above that lant’s was the first to mention an allusion to de- testify, fendant’s failure to by no mention made county attorney making until had been accused of allusion, whereupon making he denied such and asserted knowledge his that he could not refer to such failure. think that under this ad- record cannot take vantage opponent deny of his own statement cause making or at- the same statement reference torney already remain of the made. We original opinion Bill No. *7 fails show that
It is the record Lubbock following County dry in the statement area. find the We witness, Moore, County Louie F. Clerk Lubbock of facts: The testifying stand, County, placed and after the Minutes of and under his control following county, place: took Commissioners’ Court dispense any fur- please, we If the Court “MR. BURKS: they dry county, proof to. status of want ther agree dry area, you And will “MR. brummett: ago? exceрtion you mentioned while (Nodding). “MR. BURKS: rests, your Honor.” : The State brummett
“MR. ground charge on objection no There is court’s allegation dry prove relative to status a failure to attorney, County. appellant’s by his think that We Lubbock area, offer, proof and that state wаived the waiver, by whom such accepted the witness and excused proven waiver. on account of offered could have original opinion, adhere to rehearing will overruled. and the motion L. v. Tadlock State. William February 1950. No. 24644. Rehearing Denied March