Fromm v. State ( 1931 )

In paragraph 6 of the court's charge it is said:

"It is not unlawful for a person to have in his possession whisky or any other intoxicating liquor when the same is being so had and held for medicinal purposes."

It is the contention of the appellant that this paragraph of the charge limited his defense to the possession of the liquor for medicinal purposes. In paragraph 8 of the charge of the court specifically informed the jury that if the whisky was possessed by the appellant for any other purpose than for sale, or if the whisky had been left with him for the purpose of sampling it with the view of buying it, or if there was a reasonable doubt upon either of those matters, or a reasonable doubt as to whether the appellant had the whisky for the purpose of sale, an acquittal should follow.

The court gave an instruction accurately and fully advising the jury on the subject of prima facie evidence, as defined in article 671, P. C. The instruction is in accord with the precedents announced by this court. When the evidence that the accused possessed more than one quart of intoxicating liquor is conclusive, it is not incumbent upon the court, or necessary for the protection of the appellant's rights, to instruct upon the law of circumstantial evidence. This has been so held by this court several times. See Terry v. State, 101 Tex. Crim. 267; Buchanan v. State, 107 Tex.Crim. Rep..

The motion for rehearing is overruled.

Overruled.