¶1ON MOTION FOR REHEARING.
¶2Appellant directs our attention to the fact that he reserved proper exception to paragraph V of the charge as being on the weight of the evidence and urges that the overruling of this exception and the refusal of his requested charge on the subject constitute reversible error.
¶3Conceding, for instant purposes, that the charge was subject to the objection urged; that is, that it was upon the weight of the evidence in that it assumed as a fact possession by appellant of the whiskey in question, the question nevertheless remains as to whether such a charge requires a reversal of the case.
¶4As we view the evidence, the appellant is relegated to the position before this court, and was before the trial court, that the facts as testified to by the witnesses did not show that he was, as a matter of law, in possession of the whiskey in question. If the testimony of the witnesses be true, we hold that the same shows without dispute that the appellant possessed the whiskey. Without arbitrarily disbelieving the state’s witnesses, a finding that appellant possessed the whiskey was inescapable; whether he possessed it for the purpose of sale in a dry area was another issue. In view of this, we conclude that Article 666, C. C. P., was enacted by the legislature to meet just such a situation as we have here presented. The error in the charge here could have no effect upon the jury in deciding the issue not in dispute.
¶5In Maier v. State, 90 Tex. Cr. R. 459, 235 S. W. 576, we said:
¶6*656“The facts constituting the elements of the offense and its commission by the appellant were testified to by witnesses. They were not controverted by any testimony. No discrediting facts were introduced or suggested which would authorize the jury to disregard the testimony. Without arbitrarily disbelieving the evidence, a conviction was a necessary result. No change was suggested with reference to the charge which would or could, in our judgment, have affected the jury’s assessment of the punishment .... on the contrary, it seems manifest that such irregularities as are complained of, granting the technical accuracy of them, could have produced no result prejudicial to the appellant.”
¶7Had there been a disputed fact issue as to his possession of the whiskey, the charge as given would probably have constituted reversible error.
¶8We do not construe the evidence as showing four or more distinct lots of whiskey to have been possessed by appellant.
¶9It is true that the evidence shows that there were four loads delivered and that appellant removed a portion thereof at different times. It is not shown, however, that all of the whiskey from prior deliveries was taken away before other whiskey was delivered to Grant’s home. The state was, therefore, not required to elect as to what particular whiskey out of the four loads they relied upon as having been possessed by appellant for the purpose of sale.
¶10Other bills of exception have again been examined, and we remain convinced that no error is shown which calls for reversal.
¶11Appellant’s motion for rehearing is overruled.