
    CANNAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Intoxicating Liquors (§ 224*) — Criminal Prosecutions — Burden of Proof.
    On a trial for violating the local option law, the burden is on the state to prove beyond a reasonable doubt that the beverage sold would produce intoxication, and it was error to charge that the burden was on the state in the first instance to prove that beer was sold, whereupon the burden shifted to defendant to prove that the beer so sold was not intoxicating.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 275-281; Dee. Dig. § 224.*]
    Appeal from Brazoria County Court; J. W. Munson, Judge.
    Oswell Cannan was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    Masterson & Rucks and W. T. Williams,' all of Angleton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of violating the local option law.

Jim Booth and Glen Hanna testified that appellant sold beer to Jim Booth; that the beer was intoxicating. Appellant virtually admits selling a malt drink to Booth but says it was a nonintoxicating drink. E. P. I-Ioefle testified that the beverage sold had a different effect and taste from such beers as Budweiser, Schlitz, Blue Ribbon, Pabst, or any other beer sold in saloons. That it was a malt beverage of very low grade and would not intoxicate. This in substance was also the testimony of J. O. Fredricks and R. E. L. Stringfellow. It is thus seen that the only issue to determine was whether or not the beverage sold was an intoxicant. The court charged the jury: “You are further charged that the burden of proof is on the state, in the first instance, to prove beyond a reasonable doubt that beer was sold, if any, as alleged in the information in this case, after which the burden of proof shifts to the defendant, and it then devolves upon the defendant to prove that such beer so sold, if any, was not intoxicating.” This is not the law. The burden of proof was on the state to prove beyond a reasonable doubt that the beverage sold would produce intoxication, and the court committed material error in instructing the jury that the burden of proof was on defendant to prove that the beer sold was not intoxicating.

There are a number of other grounds in the motion for new trial, but there was no error committed in admitting and rejecting testimony, and the charge of the court, together with the special charges given, sufficiently presented the case, except that the burden of proving that the beverage sold was not intoxicating was erroneously placed on defendant.

The judgment is reversed, and the cause remanded.  