Trammell v. State , 280 S.W. 789 ( 1926 )

BAKER, J.

The appellant was convicted in the district court of Harrison county of the offense of unlawfully possessing intoxicating liquor, and her punishment assessed at two years in the penitentiary.

The record discloses that the officers searched the house and premises of the appellant, and found two quarts of whisky under the dining room table, and about five gallon of “home brew” or “choc beer.” It was the contention of the state that the appellant had said whisky for sale, and it was appellant’s contention that she had same for medicinal purposes for herself and mother.

The appellant in several ways complains of the action of the court in permitting the state to introduce evidence pertaining to the “home brew” or “choc beer” found on the premises, because it is contended that it was not shown that same was intoxicating, and was prejudicial to the rights of the appellant. We fail to see any merit in this contention. It was proper for the witnesses to testify what they found at the time of the search, because same was part of the res ges-tae. The court in his charge also ignored any reference to the beer in question, and there was no issue made thereon by the state or any contention that it was seeking a conviction of the defendant for possessing said beer. To the contrary, the sole issue in the case was limited to the possession of the whisky and the use thereof.

Appellant complains of that portion of the charge of the court in which it is stated that possession of more than one quart of whisky is prima facie evidence of guilt. We have carefully examined said charge, and find fhat the court, after charging the statute thereon, properly tells the jury that same is not conclusive evidence, and that said evidence is to weighed with all the other evidence in the case, and in connection with a reasonable doubt and presumption of innocence, and that the jury must believe beyond a reasonable doubt that the defendant is guilty before they would be authorized to convict. This charge propei’ly follows the decisions of this court heretofore announced on prima facie evidence in such cases. Newton v. State, 267 S. W. 272, 98 Tex. Cr. R. 582; Stoneham v. State, 268 S. W. 156, 99 Tex. Cr. R. 54.

The appellant also insists that this court should invoke and apply the search and seizure law, which was passed by the last session of the Legislature, to this case. There is no merit in this contention, for the reason that said law went into effect after the trial of this case, and could not apply thereto. In support of this contention this court has so held in the case of Bailey Harrison v. State, 279 S. W. 455, from Angelina county (No. 9711) yet [officially] unreported.

The court properly charged the jury on all phases of the case raised by the testimony, both of the state and the appellant, and, after a careful examination of the entire record, we are unable to find any error in the trial of this case, and are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Court of Criminal Appeals and approved by the court.