
    CHAVES v. STATE.
    (No. 8650.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.
    Appeal Reinstated Oct. 7, 1925.)
    I.Criminal law <&wkey;l076(4) — Appeal dismissed where appeal bond insufficient.
    Appeal will be dismissed where appeal bond is not Signed by appellant,'in view of Code Or. Proe. 1911, art. 321, and is erroneously dated, and does not sufficiently describe the offense.
    On Motion to Reinstate Appeal.
    2. Intoxicating liquors <&wkey;223(3)— Proof held insufficient to sustain conviction under indictment charging possession of spirituous, vinous, and malt liquor.
    Proof that liquor found in defendant’s possession was intoxicating held insufficient to sustain conviction under indictment charging that liquor found in defendant’s possession is spirituous, vinous, and malt liquor.
    3. Indictment and information &wkey;>l7l — Allegation in. indictment and proof must correspond1.
    Allegation in indictment and proof must correspond.
    ig=ffor other cases see same topic and KEY-NUMBBR-in an Key-Numbered Digests and Indexes
    Appeal from District Court, Reeves County ; Chas. Gibbs, Judge.
    Thomas Chaves was convicted of possessing intoxicating liquor, and he appeals.
    Reversed and remanded.
    John B. Howard, of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Reeves county of possessing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The appeal bond is not signed by appellant. His name is signed thereto by his attorney of record. No attempt of any kind is made to show authority on the part of said attorney for such signature, even if it were permitted under article 321 of our C. C. P., which requires that such recognizance or bond shall be signed by the accused. This is also the effect of the decisions which are collated under said article in Mir. Vernon’s C. C. P. See Chaney v. State, 23 Tex. 24; Ferrill v. State, 29 Tex. 489. We further observe that appellant was tried in December, 1923, and his bond is dated and approved in January, 1923. We also note that the description of the offense in said bond is insufficient. “Possession of 1 quart of liquor for sale” is not the equivalent for “possession of intoxicating liquor for the purpose of sale.”

For the insufficiency of the bond, the appeal will be dismissed.

On Motion to Reinstate Appeal.

This case was dismissed at a-former day of this term because of the fact that no sufficient recognizance or appeal bond appeared in the record. This defect has been removed, a sufficient bond has been filed, and the case will now be considered on its merits.

The state saw fit to charge in its indictment that appellant was in possession of “spirituous, vinous, and malt liquors capable of producing intoxication.”' >To prove this allegation the state introduced testimony sufficient to show appellant in possession of certain bottles of tequila-, and that tequila is intoxicating. "We have carefully searched the record to see if there he any testimony that tequila is either a spirituous, vinous or malt liquor, and find not a word. The state of Texas maintains at its capital city a state chemist, whose duties require him to analyze, at no cost to prosecuting officers, liquors and matters of that kind sent to him for analysis. If .tequila he either spirituous, vinous, or malt liquor, this fact should be shown by testimony. Can it be said that proof of the fact that tequila is intoxicating meets the universal requirement in every case, viz., that the allegation in the indictment and the proof correspond? If there were no other intoxicating liquors save such as are spirituous, vinous, or malt, then proof of the fact that the liquor was intoxicating would meet the allegations above mentioned. In Allred v. State, 89 Ala. 112, 8 So. 56, it is held that liquor may he highly ■ intoxicating and yet not spirituous. In Commonwealth v. Herrick, 60 Mass. (6 Cush.) 465, and Commonwealth v. Gray, 68 Mass. (2 Gray) 501, 61 Am. Dec. 476, it is said that the word “intoxicating” is a broader word, and includes a larger class of eases than “spirituous,” and that, although spirituous liquors are intoxicating, all. intoxicating liquors are not spirituous. It is manifest that spirituous, vinous, and malt liquors refer to different kinds 'of liquor, and whether these three descrip-tives comprehend all kinds and classes of intoxicating liquor is a matter of which this court has no knowledge, and is a matter not established by any proof in the ease under consideration.

If the indictment in the instant case had merely charged appellant with the possession of liquor capable of producing intoxication, there would have been no variance between the proof and the allegations, but when the pleader specifically states in the indictment that the liquor found in possession of the appellant is spirituous, vinous, and malt liquor, other proof is necessary to meet these allegations beside the statement of witnesses that the liquor found in appellant’s possession was intoxicating.

Because of the failure of the state to meet by proof its allegations in the indictment, the judgment must be reversed and the cause remanded.  