
    ESTELL v. STATE.
    (No. 6759.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.)
    1. Criminal law <&wkey;l 111 (3)— Uncontroverted bills of exceptions, approved by court, taken as true on appeal.
    Where bills of exceptions presenting matter as erroneous were approved without modification by the trial court, the matters therein stated must be taken on appeal as true, in the absence of controversy.
    2. Criminal law &wkey;>|649,(2) — Postponement pending completion of codefendants trial proper.
    Where separate indictments were returned against defendant and one K., the cases set for the same date and defendant’s case called when the jury in the K. case retired, defendant’s application for a postponement, in 'order that K.’s testimony might be available, setting up matters available in support of a motion for severance under Yernon’s Ann. Code Cr. Proc. 1916, art. 727, should have been granted, where the postponement would not have operated as a continuance.
    3. Indictment and information &wkey;>!27 — Indictment may charge in separate counts several offenses similar in kind.
    The insertion of several counts in an indictment, which charges offenses similar in kind, or which may find support in the same kind of testimony for the purpose of meeting evidence that might be introduced, is permitted.
    4. Intoxicating liquors <&wkey;!7 — Sale of liquors of different alcoholic content may be prohibited.
    Federal and state laws may make penal in the several jurisdictions the sale, etc., of liquors of different alcoholic content, when not carried to the extent of allowing the sale, etc., of liquor in fact capable of producing intoxication.
    5. Intoxicating liquors <&wkey;239(5) — In prosecution for manufacturing, charge that intoxicating liquor included all liquors with more than one per cent, alcohol, error.
    Where defendant was accused of manufacturing liquor capable of producing intoxication, a charge that the words “intoxicating liquor” include any spirituous, vinous, or malt liquors containing in excess of one per cent, of alcohol by volume, was error, the manufacture of intoxicating liquors and liquors containing in excess of one per cent, of alcohol by volume being distinct crimes, as defined by Dean Law, §§ 1, -2 (Yernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.).
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    J. C. Estell was convicted of manufacturing intoxicating liquor, and be appeals.
    Reversed and remanded.
    Currie McCuteheon, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted, in criminal district court No. 2 of Dallas county, of the offense of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

By separate indictments returned on the same day, appellant and one Kissinger were indicted for the unlawful manufacture of intoxicating liquor. The cases were set in the same court for October 3, 1921. The Kissinger case was first put upon trial, and, after the retirement of the jury to consider their verdict in said case, the instant case was called. After announcement of ready by the state, appellant asked a postponement until the conclusion of the Kissinger trial, setting up'fully and • substantially matters which are ordinarily held to be available in support of a motion for severance, under article 727, O. O. P. This application was overruled, and appellant’s trial began, and proceeded as far as the selection and swearing of the jury, at which 'time the Kissinger jury came into court and were discharged, and said cause reset for October 24, 1921. Thereupon appellant renewed his motion to postpone this cause in order that Kissinger might be first tried and that appellant might avail himself of the testimony of said Kissinger in case of an acquittal, he averring in said motion that there was not sufficient evidence to justify the conviction of Kissinger. This application was also overruled, and the trial concluded and this conviction had. The bill of exceptions presenting this matter as erroneous is approved without modification by the trial court, and the matters of fact therein stated must be taken by us as true, in the absence of any controversy by the state. Article 727 of our Code of Criminal Procedure provides that, upon making an affidavit setting out substantially the provisions of said statute, a severance shall be granted, the only ground in said article upon which such request for severance may be denied appearing to be that, if each party make a similar affidavit, the court shall decide which is to be first tried, and if the granting of such request for severance would operate as a continuance, such request would be denied. The provisions of said article have been held mandatory. Dodson v. State, 32 Tex. Cr. R. 529, 24 S. W. 899; Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878. The allegations of the motion to postpone in the instant ease seem sufficient. Reed v. State, 11 Tex. Cr. App. 509, 40 Am. Rep. 795. Reference to the caption of the transcript in the instant case shows that, to have postponed appellant’s trial to October 24, 1921, would not have operated as a continuance, the trial term extending well beyond that date. We are of opinion that the application to postpone should have been granted.

The indictment against appellant contained three counts. The first charged the unlawful manufacture of liquor capable of producing intoxication; the second, the possession of such liquor; the third, the possession of equipment for the manufacture of such liquor. A motion to require the state to elect upon which count it would proceed against appellant was overruled, and an exception reserved to the court’s charge for its submission of all of said counts. We believe the authorities permit .the insertion of several counts in an indictment which charge offenses similar in kind, or which might find support in the same kind of testimony, for the purpose of meeting the evidence that might be introduced. Vernon’s O. ,0. P., pp. 245-248. The conviction of appellant was under the first count. The charge of the court contained the following:

“You are further instructed that the words intoxicating liquor include any spirituous, vinous, or malt liquors containing in excess of one per cent, of alcohol by volume.”

Exception was properly reserved to this part of the charge as not being responsive to any count of the indictment or any offense charged, and further that same is a statement to the jury that liquor containing one per cent, of alcohol by volume is intoxicating, as a matter of law. Reference to the Dean Law, Acts Second Called Session, 36th Legislature, p. 228 (Vernon’s Ann. Pen. Code Supp. 1922, art. 58814 et seq.), shows that, in section 1 thereof, the manufacture, etc., of liquor “capable of producing intoxication” is specifically forbidden. Section 2 of said act forbids the manufacture, etc., of any liquor containing in excess of one per cent, of alcohol by volume. It is true that the pleader may elect in a given case, in order to meet his proof, which characterization he would give to the liquor so manufactured, etc., but we know of no authority holding that proof of the kind oí liquor described in one section of said law will meet an allegation of that kind of liquor mentioned in the other section. We know of no limitation upon the power of our Legislature to prohibit the manufacture of or commerce in liquor' having any per cent, of alcoholic content, but that question is not before us. True, section 3 of said Dean Act is as follows:

“The words ‘intoxicating liquors,’ or ‘liquors’ hereafter used in this act shall be held to include and comprehend all liquors referred to in the first and second sections of this act and the said liquors prohibited by the said first and second sections of this act will hereafter be referred to herein for convenience as ‘intoxicating liquors.’ ”

This, by express terms, points forward to the remainder of said act, and must be held to speak the legislative intent, and that same does not point back to the two preceding sections and cannot be held to affect the fact that the plain import of said two preceding sections is to distinguish the manufacture, sale, etc., of liquor capable of producing intoxication from the manufacture, sale, etc., of liquor having one per cent, alcoholic content. We are not called upon the speculate as to the legislative purpose in making this distinction. It might be seriously disputed whether one quart of alcohol, diluted by 99 quarts of water or other liquid, would in fact be a liquor capable of producing intoxication, but be that as it may, we must endeavor to carry out the legislative purpose made apparent by the separation of the manufacture, etc., of such liquors into two legally distinct crimes defined in sections 1- and 2 of said Dean Law.

There seems now no dispute of the fact that federal and state laws may make penal, in the several jurisdictions, the sale, etc., of liquors of different alcoholic content, when not carried to the extent of allowing the sale, etc., of liquor which is in fact capable of producing intoxication.

There was testimony introduced on the trial of the instant case as to the percentage of alcoholic content by volume in the liquor appellant was charged with manufacturing. We are of opinion that, in a case in which the accused is charged with manufacturing liquor capable of producing intoxication, it would be erroneous to tell the jury that, by intoxicating liquor, is meant that which contains in excess of one per cent, alcoholic content by volume.

For the errors mentioned, the judgment of the trial court will be reversed, and the cause remanded. 
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