The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
The motion for rehearing proceeds upon the theory that the five full bottles of whisky taken by the officers at the time of appellant’s arrest were found somewhere in the building which appellant had entered, but were not taken directly from appellant. These five full bottles of whisky are not to be confused with the probable contents of the broken bottles. The five full bottles contained more than a quart of whisky.
The record discloses that after the State and appellant had rested, and appellant had requested a charge upon circumstantial evidence the State was given permission to reopen the case. The State then proved by officers Gordon and Zeigler that the five full bottles of whisky were “all taken from J. D. Clinnard,” the appellant. Neither of these witnesses appear to have been cross examined upon this point to develop — if it was a fact — that the five bottles were simply found in the building. This evidence authorized the court to charge upon the prima facie evidence of possession of more than a quart of whisky even though the evidence as to the broken bottles be disregarded. This court must take the evidence as found in the record. As developed as to the five full bottles it does not raise an issue that the officers were stating a legal conclusion rather than a
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fact when they testified that said five bottles were taken from appellant. No charge upon circumstantial evidence was called for.
The motion for rehearing is overruled.