
    LLOYD v. STATE.
    (No. 9308.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.
    Rehearing Granted Jan. 20, 1926.)
    I.Criminal law <®=^406(4) — Admission of evidence as to statement accused made before grand jury held not error, in absence of showing statement was involuntarily made.
    Admission of evidence as to statement accused made before the grand jury, that he admitted that the liquor found in a certain woman’s house was his liquor, held not error, in the absence of a showing that the statement was not a voluntary one.
    2. Intoxicating liquors <&wkey;226 — Accused’s subsequent marriage to woman, in whose house was found liquor he admitted was his, held admissible.
    In a prosecution for possession for purpose of sale, of liquor found in a woman’s house, where it appeared that accused, before the grand jury, admitted that the alleged liquor found there was his, evidence of defendant’s subsequent marriage to the woman was admissible as circumstance corroborating his statement before grand jury.'
    3. Criminal law &wkey;>42l(l) — Defendant’s marriage could be proved by member of family of woman he married.
    Defendant’s marriage may be proved by testimony of member of family of woman he married.
    4. Witnesses i&wkey;268(8)— Question whether witness had heard accused say that witness’ mother could not be used against him because of mother’s marriage held proper cross-examination.
    In a liquor prosecution, based upon liquor found in house of woman who was witness’ mother, and whom accused married, where it appeared accused admitted before the grand jury that the liquor was his, questioning witness whether he had heard accused state that, since he (accused) married witness’ mother, she could not be used as a witness against him, held proper cross-examination.
    5. Criminal law <@=ol 170'/2(2) — Question, if improper cross-examination, held not to require reversal, where answer unfavorable to state.
    Inquiry on cross-examination, whether witness had heard accused state that, .since he married witness’ mother, she could not be used as a witness against him, if improper, held not to require reversal, in view of witness’ negative answer.
    On Motion for Rehearing.
    6. Intoxicating liquors <&wkey;236(7) — Proof held insufficient to convict under indictment for possession, for sale, of “spirituous, vinous, or malt liquor” capable of producing intoxicar tion. i
    Proof of possession of tequila, which kind of beverage the proof showed was intoxicating, held insufficient to sustain conviction under indictment charging possession, for purpose of sale, of spirituous, vinous, and malt liquor capable of producing intoxication.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Reeves Lloyd was convicted of possessing intoxicating liquor for s.ale, and he appeals.
    Reversed and remanded.
    Harris Bell, of Austin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the district court of Travis county for the offense of possessing intoxicating liquor for the purpose of sale, and his punishment assessed at confinement in the penitentiary for a term of one year.

The state’s testimony shows that 59 bottles of liquor were found in the home of Mrs. Maggie Ross at the end of the car line on South Congress avenue in the city of Austin,/ on or about the 3d day of April, 1924. It also shows that this liquor so. found was in a secret place in said house, and that said liquor was intoxicating. It further shows that the appellant went before the grand jury of Travis county, after, the same was found, and admitted to said grand jury that said liquor belonged to him. This testimony on the part of the state is uncontradicted and undisputed by any testimony whatsoever offered by the appellant.

By various bills of exceptions, appellant complains at the court’s, action in permitting the state to prove the statement made by the appellant before the grand jury of Travis county. The objections to such testimony were to the effect that it was a repetition'of matter shown to have occurred at a proceeding before the grand jury, and that it had not been shown that the formalities and requirements of the statute with reference to the giving of testimony before a grand jury or the repetition of same in court had been complied with. These objections are not tenable. If the testimony so offered was not in the nature of a voluntary statement before the grand jury, and if the appellant was under arrest, or there was any other reason why same was not admissible, then the burden was on the appellant to show this. There is no suggestion in the record that appellant was under arrest or duress of any character or kind at the time he went before the grand jury, and, in this state of the record, no error is manifested by the court’s action in permitting this testimony.

Various bills of exceptions also complain of the court’s action in permitting the state to prove that the appellant was married to Mrs. Ross at the time of the trial. The record showing that at the time the liquor was found at her residence she and appellant were not married. The objection to this testimony was to the effect that the same was irrelevant and immaterial, and that the statement of the son of the said Mrs. Ross was not the legal way of proving the marriage of the parties. Neither of these objections are tenable. The fact of the subsequent marriage of Mrs. Ross and this appellant, after the liquor was found, was clearly admissible as a circumstance corroborating appellant’s statement before the grand jury that the liquor belonged to him. This testimony probably enabled the jury to more readily believe that the liquor belonged to the appellant when found in the home of his financé, whom he afterwards married, than if it had been found in the home of a stranger. It was, of course, proper to prove the subsequent marriage by a member of Mrs. Ross’ family.

Complaint is also made by bill of exceptions to the court’s action in permitting the district attorney to ask the witness John K. Ross, the son of Mrs. Ross, if he had ever heard the appellant discussing the fact that, since he had married the witness’ mother, she could not be used as a witness against him. The witness answered this question in the negative, and we fail to'see how any injury could have resulted to appellant on account of the mere asking of the question. We think the question was permissible as a matter of cross-examination, but, if there should be any doubt of the propriety of asking the question, we would still say that it was not of such importance as to require a reversal of the case, in view of the record as made. The state’s case against the appellant seems to us to be perfect in every detail, and is not impeached or weakened in any manner by any testimony offered by the appellant. It is also true that the jury saw fit to give the appellant the lowest penalty provided by law, and under this state of the record we overrule appellant’s complaint with reference to the asking of the question above discussed.

What has been said disposes of all of ap1-pellant’s complaints, and it follows that in our opinion no reversible error is shown.

'It is therefore our opinion that the judgment should be in all things affirmed.

On Motion for Rehearing.

Appellant contends in his motion for rehearing that we were in error in holding that the proof met the allegation contained in the indictment, to wit, that the appellant unlawfully possessed for the purpose of sale spirituous, vinous, and malt liquor capable of producing intoxication. The state saw fit to make this allegation in the indictment, and, for the purpose of meeting the allegation, it introduced testimony showing that the appellant was in possession of 59 quarts of tequila. We have searched the record for any testimony that shows or tends to show that tequila is either a spirituous, vinous, or malt liquor, and it is silent in this regard. The proof shows that tequila is intoxicating, but this is not sufficient to meet the requirement that the allegation in the indictment and the proof must correspond.

“Either spirituous, vinous, or malt liquor may be intoxicating, yet neither of these classes, nor all of them combined, include all that is meant by intoxicating liquors.” Black on Intoxicating Liquors, p. 3.

The .identical question here presented was decided in favor of the appellant’s contention by this court, speaking through Judge Lattimore in the case of Chaves v. State (Tex. Cr. App.) 275 S. W. 1006. Also see Tolar v. State, 97 Tex. Cr. R. 145, 260 S. W. 1043.

Because there is no proof that the liquor found in the appellant’s possession was either spirituous, vinous, or malt liquor, his motion for rehearing' will he granted, the judgment of affirmance set aside, and the case will be reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has .been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
      (S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     