
    JACKSON v. STATE.
    (No. 11581.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    1. Intoxicating liquors <3=^224 — In prosecution for possessing liquor f.orsale, state has burden to prove .liquor was spirituous, vinous, or malt liquor (Pen. Code 1925, art. 667).
    In prosecution under Pen. Code 1925, art. 667, for possession of spirituous, vinous, or malt liquor for purpose of sale, burden was on state to prove that liquor was spirituous, vinous or malt liquor.
    2. Intoxioating liquors &wkey;^236( 13) — -Evidence not showing liquid was spirituous, vinous, or malt liquor held insufficient to support conviction for possession for purpose of sale (Pen. Code 1925, art. 667).
    In prosecution under Pen. Code 1925, art. 667, for possession of spirituous, vinous, and malt liquor containing more than one per cent, of alcohol by volume for purpose of sale, evidence held insufficient to show that liquid in question was spirituous, vinous, or malt liquor rendering conviction erroneous.
    Commissioners’ Decision.
    Appeal from District Court, Hall County; C. C. Small, Judge.
    James Jackson was convicted of possession of spirituous, vinous, and malt liquors containing in excess of one per cent, of alcohol by volume for the purpose of sale and he appeals.
    Reversed and remanded.
    Fitzgerald & Grundy, of Memphis, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State. .
   CHRISTIAN, J.

The offense is possession for the purpose of sale of spirituous, vinous, and malt liquors containing in' excess of one per cent, of alcohol by volume; the punishment confinement in the penitentiary for one year.

The indictment contains the following:

“ * * * Possessed for the purpose of sale spirituous, vinous and malt liquors containing in excess of one per cent, of alcohol by volume.”

The offense charged is defined by article 667, P. O., which denounces the possession for the purpose of sale of spirituous, vinous, or malt liquors or medicated bitters containing in excess of one per cent, of alcohol by volume, as well as the possession for the purpose of sale of any potable liquor, mixture, or preparation containing in excess of one per cent, of alcohol by volume. Two phases of the offense are embraced by the article in question. The present indictment charges only one phase; namely, the possession for the purpose of sale of spirituous, vinous, and malt liquors containing in excess of one per cent, of alcohol by volume. It was incumbent on the state to prove that the liquor was a spirituous, vinous, or malt liquor.

Officers found on the premises of appellant a quantity of what “was denominated “home brew.” Each of the officers described the liquid as home brew, while in some parts of the record it was casually referred to as beer. The entire record makes it manifest that said liquid was “home brew.” Appellant, in admitting the possession of the liquor referred to it as home brew. The chemist who analyzed one bottle of the liquid referred to it as beer. However, his testimony negatives the idea that the liquid contained malt. He said.:

“The white stuff there in the bottle is the residue after extracting the alcohol. The other there is alcohol. No, that is not all alcohol; it is 53¾00% alcohol and the rest of it is water.”

Proof that the liquid was “beer” would have supported the averment that it was malt liquor. Williams v. State, 106 Tex. Cr. R. 419, 292 S. W. 898. In Williams', supra, Judge Morrow states the rule as follows :

“If the indictment had charged that the appellant transported a ‘potable-’ liquor containing in excess one per cent, of alcohol by volume, then the proof would h.ave been sufficient to support the verdict, although the liquor was not a spirituous, vinous, or malt liquor nor an intoxicating liquor. In the absence of an averment that the liquor transported was potable— that is, drinkable; usable as a beverage — and In the absence of proof that it was a spirituous, vinous, or malt liquor, the conviction cannot be sustained, for the reason that the proof does not correspond with the averment.”

See Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 914; Huddleston v. State, 103 Tex. Cr. R. 108, 280 S. W. 218; Henson v. State, 103 Tex. Cr. R. 123, 280 S. W. 593; Chaves v. State, 101 Tex. Cr. R. 367, 275 S. W. 1006.

We think the evidence fails to show that the liquid possessed by appellant was spirituous, vinous, or malt liquor.

Because the proof does not .correspond with the averment contained in the indictment, the judgment is 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. 
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