
    OATS v. STATE.
    (No. 7561.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    1. Intoxicating liquors @=>216 — Indictment charging sale held defective for failure to allege that liquor soldi was capable of producing intoxication.
    Indictment charging the sale of spirituous, vinous, and malt liquor held fatally defective for failure to allege that the liquor sold was capable of producing intoxication, under the Dean Law, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼).
    2. Intoxicating liquors @=>134 — Sale of spirituous, vinous, and malt liquors not unlawful unless capable of producing intoxication.
    Under the Dean Law, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼), prohibiting the sale of spirituous, vinous, and malt liquors and medicated bitters capable of producing intoxication, the sale of spirituous, vinous, and malt liquor does not constitute a crime unless the liquor is capable of producing intoxication; the phrase “capable of producing intoxication” being applicable to spirituous, vinous, and malt liquor as well as to medicated bitters, in view of section' 2.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    Leland Oats was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    See, also, 91 Tex. Cr. R. 67, 238 S. W. 932.
    V. L. Shurtleff, of Breckenridge, for appellant.
    S. J. Osborne, Asst. Dist. Atty., of Breckenridge, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Stephens county of the offense of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The indictment contained two counts, one charging the sale of spirituous, vinous, and malt liquor, and the other the sale of liquor containing more than 1 per cent, alcohol by volume. Both counts were submitted to the jury, and they found appellant guilty under the first.

A motion was made to quash the first count because same did not allege that the spirituous, vinous, and malt liquor sold was “capable of. producing intoxication.” The motion should have been sustained. The state files a persuasive brief in support of the correctness of said indictment, but cites no authorities. Its contention is that the statute inhibiting the sale of spirituous, vinous, and malt liquors and medicated bitters capable of producing intoxication intends to absolutely prohibit the sale of all liquor which might be denominated spirituous, vinous, and malt liquor, and that the use of the phrase “capable of producing intoxication” was intended by the Legislature to apply only to medicated bitters. We do not agree with this contention.

It seems clear that the first section of the Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼) is aimed at the sale, etc., of any intoxicant whatsoever, and the second section at the sale of any liquor containing in excess of 1 per cent, of alcohol by volume. It must be conceded that liquor may have malt in it so that its alcoholic content will be less than 1 per cent, by volume, and that liquor may have malt in it in such small quantities as to not be intoxicating. The same reasoning probably applies to spirituous liquor.

The whole purpose of our liquor laws is to stop the use of intoxicating liquor as a beverage, and the language employed by the lawmakers is plain, and there would seem little reason for failing to charge that the spirituous, vinous, and malt liuors alleged to be sold were capable of producing intoxication. The statement of facts herein shows sale of some compound called “Jake." Under the plain language of the statute one may be prosecuted and convicted who sells any kind of liquor capable of producing intoxication, or which contains 1 per cent, of alcohol by volume. This would seem plain enough to be understood by all, and broad enough to comprehend all violators of the law.

The conviction being under the first count, and it being fatally defective in that it failed to allege that the liquor sold was capable of producing intoxication, the judgment must be reversed, and the cause remanded. 
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