
    WILLIAMS v. STATE.
    (No. 10226.)
    Court of Criminal Appeals of Texas.
    March 30, 1927.
    I.Intoxicating liquors <@=>223(3) — In absence ' of averment “of any other intoxicant whatever” in indictment for transporting, proof that liquor was spirituous, vinous, or malt is essential (Pen. Code 1925, art. 666).
    In absence of averment of any other intoxicant whatever, in indictment under Pen. Code 1925, art. 666, .denouncing transportation of spirituous, vinous, or malt liquors capable of producing intoxication, or of any intoxicant whatever, proof that liquor was spirituous, vinous, or malt is essential to conviction.
    2. Intoxicating liquors (@=>236(13) — indictment for possessing spirituous, vinous, or malt liquor or potable liquor is not supported by proof that liquid contained in excess of i per cent, of alcohol (Pen. Code 1925, art. 667).
    Averment in indictment under Pen. Code 1926, art. 667, that fluid in question was spirituous, vinous, or malt liquor, or medicated bitters or potable liquor, containing in excess of 1 per cent, of alcohol, is not.supported by merely proving liquid contained in excess of 1 per cent, of alcohol by volume.
    3. Intoxicating liquors <&wkey;236( 13)— State’s burden to prove liquor transported was intoxicating was not met by proof it was “choc” beer (Pen. Code 1925, arts. 666, 667).
    Under indictment alleging defendant transported liquor containing in excess of 1 per cent, of alcohol by volume, state’s burden of proving that liqpor was intoxicating, in view of Pen. Code 1925, arts. 666, 667, was not met by proof that it was “choc” beer.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    W. E. Williams was convicted of unlawfully transporting liquor containing in excess of 1 per cent, of alcohol, and he appeals.
    Reversed and remanded.
    Frank S. Roberts, of Breckenridge, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Grdesbeck, for the State.
   MORROW, P. J.

Unlawfully transporting liquor containing in excess' of 1 per cent of alcohol is the offense; punishment fixed at confinement in the penitentiary for one year.

Article 666, P. C. 1925, denounces the transportation of “spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, or any other intoxicant whatever.” Article 667, P. C. 1925. reads thus:

“It shall be unlawful for any person, directly or indirectly, to possess or receive for the purpose of sale, or to manufacture, sell, barter, exchange, transport, export, deliver, take orders for, or furnish spirituous, vinous or malt liquors or medicated bitters, or any potable liquor, mixture or preparation containing in excess of one per cent, of alcohol by volume.”

This court has construed these statutes, as they obviously do, to denounce separate offenses. 'On the subject, we quote from the case of Estell v. State, 91 Tex. Cr. R. 484, 240 S. W. 914, as follows:

“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.”

The indictment contains the following:

“ * * * Transport, * * * spirituous, vinous, or malt liquors * * * containing in excess of 1 per cent, of alcohol by volume.”

Article 667, supra, embraces two phases, namely: (a) Touching spirituous, vinous, or malt liquors or medicated bitters containing in excess of 1 per cent, of alcohol by volume; (b) touching any “potable” liquor, mixture, or preparation containing in excess of 1 per cent, of alcohol by volume. It is to be noted that the present indictment charges only phase (a) mentioned above. In charging phase (b), there should be an averment that the liquid, mixture, or preparation was a “potable” liquor, and that it contained in excess of 1 per cent, of alcohol by volume. See Huddleston v. State, 103 Tex. Or. R. 108, 280 S. W. 218. Proof that the liquid was “beer” would be sufficient to support a conviction on the first phase of the indictment mentioned, for the reason that “beer” is, within the judicial knowledge of the court, a malt liquor containing in excess of 1 per cent, of alcohol by volume and usable as a beverage. Proof that the liquid was “beer” may also be adequate to .support a conviction under phase (b) of the statute. The indictment, however, failing to contain an averment that the liquid which the appellant transported was a “potable” liquor, mixture, or preparation containing in excess of 1 per cent, of alcohol by volume, the appellant is not charged wth the violation of that phase of the statute.

In the Chaves Case, 101 Tex. Or. R. 367, 275 S. W. 1006, this court endéavored ,to make plain its conclusion that a conviction under article 666, supra, could be sustained upon proper averment, by proof that the liquid in question was “spirituous, vinous, or malt liquors or medicated bitters capable of producing intoxication, or any other intoxicant whatever.” It is also made plain, in the opinion mentioned that, in the absence of the averment, “any other intoxicant whatever,” proof that the liquor was spirituous, vinous, or malt would be essential to a conviction under article 666, supra. If the prosecution is founded under article 667, supra, an averment that the fluid in question was "spirituous, vinous, or malt liquors, or medicated bitters, or any potable liquor, * * * containing in excess of l per cent, of alcohol by volume,” is not supported by merely proving that the liquid contained in excess of 1 per cent, of alcohol by volume. If it is shown to be á spirituous, vinous, or malt liquor and to contain in excess of 1 per cent, of alcohol by volume, the proof will be sufficient, or if it is shown to be a “potable” liquor, mixture, or preparation containing in excess of 1 per cent, of alcohol by volume, the quantum of proof descriptive of the liquor is met. On this subject, the announcement of the court in Huddleston’s Case, supra, is pertinent. Prom that opinion we quote:

“The statute does not prohibit the possession of all preparations containing in excess of 1 per cent, of alcohol by volume, but applies to a ‘potable’ preparation; that is to say, a drinkable preparation or a preparation usable as a beverage. * * * ‘A preparation containing in excess of 1 per cent, of alcohol by volume,’ would include many preparations which are not beverages, and many drugs and various tinctures containing in excess of 1 per cent, of alcohol by volume, and valuable as medicine, but not potable or usable as beverages.”

So, in Henson’s Case, 103 Tex. Cr. R. 123, 280 S. W. 593, the article in question was described as “choc beer.” There was no proof that “choo b'eer” was either a spirituous, vinous, or malt liquor or a potable liquor. The evidence was not sufficient, to show a violation of article 667, supra, though the liquid contained in excess of 1 per cent, of alcohol. These matters have been stated in some detail in order to group the eases dealing with the subject at present in hand.

The home of the appellant was first searched. There was found upon the premises a quantity of what was denominated as “choo beer.” The officers afterwards searched Walton’s camp. Tlje conviction is based upon the theory that the appellant transported spirituous, vinous, or malt liquors containing in excess of 1 per cent, of alcohol to Walton’s camp. There was found a quantity of liquor at Walton’s camp which the appellant admitted belonged to him. There was evidence that appellant had transported the liquid to Walton’s camp. A number of bottles of liquid were found there. They were regular beer bottles. The officers testified that they took possession of the liquor found at Walton’s camp and took it to Breckenridge. One of them said:

“We found about 30 bottles of ‘cboc beer’ at Walton’s place, which were brought to Breek-enridge and turned over to Mr. Thornton.”

Thornton testified that he took four of these bottles to Davis, a chemist, for analysis. He said: “It was the same ‘choc’ that was turned over to me by the deputy.”

Woods, one of the officers, testified that he got 29 bottles of “choc” at Walton’s camp; that he kept it separate and brought it to Breckenridge and delivered it to the sheriff.

Davis testified that Thornton delivered to him some “choc beer” for analysis; that he received four pints; that he made an analysis of it and determined the alcoholic content by volume and by weight to be 5.8 per cent. Throughout his testimony he described the liquid as “choc” or “choc beer.” '

While in some parts of the record the liquid is described as “beer,” it seems manifest from the entire record that the liquid was “choc beer.” Each of the officers who testified, while in some.places they mentioned it as “b'eer,” described it as “choc beer.” The liquid delivered to the chemist was described by the sheriff and by the chemist as “choc beer.”

The only count in the indictment which was submitted to the jury was that charging that the appellant transported “spirituous, vinous, or malt liquor containing in excess of 1 per cent, of alcohol by volume.” The evidence fails to show that the liquid transported was spirituous, vinous, or malt liquor. If the indictment had charged that the appellant transported a “potable” liquor containing in excess of 1 per cent, of alcohol by volume, then the proof would have 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 he sustained, for the reason that the proof does not correspond with the averment. See Estell v. State, 91 Tex. Cr. R. 483, 240 S. W. 913; 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.

For the reasons stated, the judgment is reversed, and' the cause remanded. 
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