
    CANTU v. STATE.
    (No. 8621.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1925.
    On Appellant’s Motion for Rehearing April 1, 1925.
    On State’s Motion for Rehearing Oct. 7, 1925.)
    1. Criminal law &wkey;>I086(l4) — Objections to charges cannot be considered, where not shown to have ever been presented to court.
    Objections to charges cannot be considered, where there is nothing-to show when, if at all, they were ever presented to court, and they bear no authentication whatever of trial judge.
    2. Criminal law c&wkey;>800(l) — Refusal to define intoxicating liquor, and to advise jury what was meant by spirituous, vinous, and malt liquor, held' not' erroneous.
    In prosecution for , transporting' intoxicating liquor, court’s refusal to define “intoxicating liquor,” and to advise jury what was meant by spirituous, vinous, and malt liquor, held not erroneous, where evidence was positive that liquor transported was intoxicating.
    3. Criminal law &wkey;>ll84 — Sentence of defend- ■ ant for transporting intoxicating liquor^ wifi be reformed in accordance with Indeterminate Sentence Law.
    Sentence of defendant, convicted of transporting intoxicating liquors, to penitentiary for two years, will be reformed in accordance with the Indeterminate Sentence Law to read not less than one nor more than tw’o years in the penitentiary.
    
      On State’s Motion for Rehearing.
    4. Intoxicating liquors @=>236(13) — Conviction for transporting intoxicating liquor sustained.
    In prosecution under indictment charging defendant with unlawfully transporting spirituous, vinous, and malt liquors capable of producing intoxication, proof that defendant transported tequila, and that it was a spirituous liquor, held sufficient to sustain conviction.
    Hawkins, J., dissenting.
    Appeal from District Court, Bee County; T. M. Cox, Judge.
    Bino Cantu was convicted of transporting intoxicating liquors, and he appeals.
    Reformed and affirmed.
    J. B\ Murray, of Ponca City, Okl., for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for transportation of intoxicating liquor. Punishment is two years in the penitentiary.

There appears in the record what purports to be objections to the charge given by the court. There is nothing to show when, if at all, they were ever presented to the court. They bear no authentication whatever of the trial judge. In such condition they cannot be considered. Salter v. State, 78 Tex. Cr. R. 325, 180 S. W. 691; Castleberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216; Rhodes v. State, 93 Tex. Cr. R. 574, 248 S. W. 679.

The sheriff and two of his deputies stopped a car being driven by appellant’s companion. Upon being asked by the sheriff what they had, appellant replied, “These are my belongings; I will show them to you right now,” whereupon he pulled from the back seat of the car a loaded shotgun. The sheriff seized hold of the gun. and in the scuffle over it he fell to the ground. One of the deputies fired at appellant several times with a pistol. Appellant escaped and was not arrested until two. or three days later. In the car was found 124 quarts of tequila. The evidence is positive that it is intoxicating. In view of such proof we see no occasion for giving the special charges requested defining “intoxicating liquor” and advising the jury what was meant by spirituous, vinous, and malt liquor. Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090.

We observe in passing sentence upon appellant he was not given the benefit of the Indeterminate Sentence Law (Acts 1913, c. 132, amended by Acts 1913 [1st Called Sess.] c. 5), but was sentenced to the penitentiary for. two years. The sentence is reformed to read that he will serve not less than one nor more than two years in the penitentiary, and as thus reformed the judgment is affirmed.

On Appellant’s Motion for Rehearing,

No brief for appellant was on file when our opinion was written, and none was presented until upon motion for rehearing. The point upon which reliance is had to reverse the judgment escaped us. The indictment charged the transportation of “spirituous, vinous, and malt liquors capable of producing intoxication.” It is admitted by appellant’s attorney that the proof is sufficient to show that the liquor being transported was intoxicating; but the contention is that the state having in the indictment specifically described the liquor as “spirituous, vinous, and malt,” was required to prove, not only that it was intoxicating, but that it was one of the particular kinds of liquor described, and that the state had failed to do this. Hendley v. State, 94 Tex. Cr. R. 40, 250 S. W. 174. The evidence only refers to the liquor as “tequila.” One of the witnesses more than once called it “spiritual” liquor. Upon being asked what he meant by calling it “spiritual,” he said he meant “it would make you drunk.” There is no evidence as to what “tequila” is nor how it is made, whether distilled, brewed, or fermented, and unless in the absence of such evidence this court can have judicial knowledge that “tequila” is either a spirituous, vinous, or malt liquor, it appears that appellant’s contention must be sustained.

“Judicial notice or knowledge may be defined as the cognizance of certain facts which judges and jurors may properly take and act upon without proof because they already know them. It is said that the term ‘judicial notice’ means no more than that the court will bring to its aid and consider, without proof'of the facts, its knowledge of those matters of public concern .which are known by all well-informed people.” 23 Corpus Juris, § 1807;
“Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence.' Other common statements of the rule are that the courts will take notice of whatever is, or ought to be, generally known within the limits of their jurisdiction, and that they ought not to assume ignorance of, or exclude from their knowledge, matters which are known to all persons of intelligence.” 23 Corpus Juris, § 1810.

We have fáiled to find any mention of “tequila” in our dictionaries, encyclopedias, or in the standard works on intoxicating liquors, such as Black, Joyce, or Wollen and Thornton, while the ordinary intoxicants known to us as whisky, beer, and wine are frequently mentioned and discussed. Neither are we advised that information of the source and method . of manufacture of “tequila”* is so generally khown as that it may be said to form the common knowledge of persons of ordinary intelligence. Prom tile name we might assume that “tequila” was a Mexican liquor, and we know from the evidence it is intoxicating, but, applying the rule as to judicial knowledge heretofore stated, we cannot assume to know what is its source, nor how it is made, and therefore cannot know whether it is a spirituous, vinous, or malt liquor.

It was not necessary to charge an offense under the statute for the state to allege that the liquor being transported by appellant was “spirituous, vinous, or malt.” Other methods of description could have been resorted to under the broad terms of the law (section 1, c. 22, p. 53, Acts 2d Called Sess. 38th Leg.); but, having chosen to describe it as set out in the indictment, we must hold that the state was bound to sustain the description by proof that the liquor came within one of the kinds designated.

Having failed to do this, it follows that appellant’s motion for rehearing must he granted, the order of affirmance set aside, and the judgment now be reversed, and the cause remanded.

On State’s Motion for Rehearing.

MORROW, P. J.

Responding to the state’s motion for rehearing, we have again reviewed the legal question presented, namely: Was the averment that the appellant did unlawfully transport spirituous, vinous, and malt liquors capable of producing intoxication, supported by the evidence? . Appellant’s connection with the transportation of a number of bottles of tequila is well supported. It was introduced in evidence before the jury and identified by a witness who said:

“As to what is contained in that bottle, well, sir, it’s tequila, spiritual. Yes, sir; it is an intoxicating liquor. Yes, sir; .1 have tasted that liquor.”

All the bottles identified and produced in the courtroom contained tequila-. The witness was not a chemist. He said, however, that tequila is. intoxicating. He also said:

“As to whether or not it was my intention on direct examination to testify that this liquor was spirituous, I testified that it was tequila; that I tasted it, and I said it was spiritual. As to how I know that it was spirituous, well, that’s what it is called. Tequila is the Mexican name for it; it’s a spiritual drink. Well, I don’t know that I can tell this court and jury what is necessary to make that become spirituous liquor; I don’t know whether I can answer that or not. As to whether or not I know that it is spirituous liquor, well, I have always been taught that it was, but I couldn’t say whether it is or not. No, sir; I do not know whether it is spirituous or not. I’ve always been taught that it was, and that’s the reason I called it spiritual, because that’s what I’ve known it to be all the time. * * * I have never seen any tequila manufactured. * * * I do not know of my own knowledge whether it is spirituous or not.
“What is meant on my direct examination by saying that this liquor was spiritual was that it was intoxicating; that’s what I meant by it. No, sir; I. don’t know whether or not tequila is a wine. Yes, sir; I know what wine is. Well, yes, tequila might be a wine of some grade. I don’t know; I couldn’t answer that. As to whether or not I think that tequila might be a wine, it might be; I couldn’t tell you. Whatever tequila is, whether spirituous, malt, vinous, or any other kind of liquor, you bet your boots it is intoxicating.”

In Webster’s New International Dictionary, p. 2129, in the footnotes, we find the word “tequila” and in brackets, “Prom the Tequila district, Mexico.” “The drink mescal.” On page 1355 of the same book We find “mescal” defined thus:

“A colorless intoxicating drink distilled in Mexico from the leaves of various species of Agave, or maguey.”

Prom the Hendley Case, 94 Tex. Cr. R. 40, 250 S. W. 174, referred to in the motion for rehearing, reference is made to Black on Intoxicating Liquor, where the term “spirituous liquor” is used with this comment:

“Examination of previous sections of the same chapter shows that ‘spirituous liquor’ is that made by the process of distillation.”

As viewed by the writer, it is not necessary to the decision of this case to make an authoritative declaration as to whether, as a matter of judicial knowledge, tequila is a spirituous liquor.

The evidence in the present case, in the opinion of the writer, is sufficient to support the finding that tequila was a spirituous liquor. Its intoxicating quality was not disputed, but, on the contrary, was categorically admitted. The witness who was interrogated upon the subject was not an expert, but from his knowledge of intoxicating liquor, and from having tasted that in question, he gave evidence that it was spirituous liquor. In some of his testimony he called it “spiritual.” He was a peace officer and not skilled in language or chemistry, but had long known of tequila as a spirituous liquor. It is true that on cross-examination he declared that by the use of the word “spiritual,” as applied to tequila, he meant that it was intoxicating. His cross-examination, we think, was not to be taken as nullifying his entire testimony or his language as detailed before the jury. To the mind of the writer, the point is analogous to cases of homicide in which the familiar practice applied to the testimony of the accused is that, although on cross-examination he is led to tie himself to a given theory of defense, other theories arising from his testimony or from that of other witnesses are hot excluded. Numerous applications of this rule are found in cases in which the accused has testified that his sole reason for slaying his antagonist was the fear of death. Upon appeal it has been held that, notwithstanding such testimony, the issue of manslaughter arose from his evidence. Instances are Steen v. State, 88 Tex. Cr. R. 257, 225 S. W. 529; Ward v. State, 96 Tex. Cr. R. 278, 257 S. W. 536; Lewis v. State, 98 Tex. Cr. R. 337, 265 S. W. 709.

From what has been said, it follows that, in the opinion of the writer, the state’s motion for rehearing should be granted, the reversal set aside, and the judgment of the trial court affirmed.

It is so ordered.

LATTIMORE, J.

(concurring). In addition to what is said in our opinion in chief on the state’s motion for rehearing, we again call earnest attention of state’s attorneys to the fact that, in describing liquor in prosecutions for violations of the law relative thereto, it is sufficient to say it is “liquor capable of producing intoxication.” If state’s attorneys would not attempt to go beyond this and add unnecessary descriptive words, the trouble in the case before ns and others would he obviated and the work of this court lessened. Tucker v. State, 94 Tex. Cr. R. 507, 251 S. W. 1090. The allegation in the instant indictment that the liquor transported was “spirituous, vinous, and malt liquor capable of producing intoxication,” gives opportunity for strong contention on the part of appellant that the state, while proving without controversy that the liquor was intoxicating, failed to prove that it was either spirituous, vinous, or malt liquor.

The sheriff swore in this case that the tequila found in appellant’s car was “spiritual.” In a liquor case this means the same is spirituous. State v. Clark, 3 Ind. 451. The word “spiritual” is given in the Century Dictionary as a synonym for “spirituous.” This witness further said that he had always been taught that tequila was a spirituous liquor; that he had known it to be such all the time; that it was intoxicating. He used other expressions in his testimony, which furnished the basis for the attack made by appellant upon the proof that the liquor was not, in fact, spirituous. The learned trial judge pointedly told the jury that, if they did not believe from the evidence beyond a reasonable doubt that appellant transported spirituous, vinous, or malt liquor capable of producing intoxication, they should acquit. Upon the trial appellant categorically admitted that the tequila found in his possession was intoxicating. We believe the jury justified in concluding that it was a spirituous liquor. In cases in which this question is a controverted one, attention of state’s attorneys is called to the fact that the state maintains its state chemist at Austin, whose duty it is to analyze liquors, etc., sent to him by officers of the state, and whose analysis given in testimony would appear to entirely satisfy the demands of our practice in the matter of making full proof.

This in addition to the opinion in chief and concurring therewith.

HAWKINS, J.

(dissenting). I regret that I am unable to concur with my Brethren in the conclusion reached by them that the evidence sufficiently shows the liquor in question to be “spirituous.” My views having been expressed at some length in the opinion granting appellant’s motion for rehearing, it is not necessary to write further. 
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