
    ROBATA v. STATE.
    (No. 10617.)
    (Court of Criminal Appeals of Texas.
    March 16, 1927.)
    1. Criminal law <@=*394 — Chemist’s testimony as to alcoholic content of liquor seized held not inadmissible under statute requiring “ail” liquors seized to be preserved (Pen. Code 1925, art. 692).
    Under Pen. Code 1925, art. 692, providing that “all liquors * . * * seized shall be preserved for use as evidence,” the mere fact that bottle of liquor seized was given to chemist for analysis to determine its alcoholic content held not to render the chemist’s testimony inadmissible.
    2. Intoxicating liquors <@=*236(13) — Testimony that “beer” was seized warranted finding that liquor seized was of unlawful alcoholic content. ' , .
    Testimony that liquor seized was “beer” held sufficient to support finding that it con- • tained alcohol in excess of 1 per cent, by volume.
    3. Criminal law <@=*304(20) — Courts judicially know that beer is a malt liquor containing more than I per cent, alcohol by volume.
    ■ The court takes judicial notice of the fact that beer is a malt liquor usable as a beverage and containing more than 1 per cent, of alcohol by volume.
    4. Intoxicating liquors <@=*236(7) — Quantity and circumstances under which beer was possessed warranted finding of possession for purpose of sale.
    The quantity and circumstances under which beer was possessed before seizure held sufficient to support finding that it was possessed for the purpose of sale.
    Appeal from District Court, Austin County; M. C. Jeffrey, Judge.
    Barton Robata was convicted of unlawfully possesing spirituous, vinous, and malt liquor containing in excess of 1 per cent, of alcohol by volume for the purpose of sale, and he appeals.
    Affirmed.
    Jos. V. Frnka, of Columbus, for appellant. Sam D. Stinson, State’s Atty., of Austin, and Robert. M. Lyles, Asst. State’s Atty., of, Groesbeck, for the State.
   MORROW, P. J.

The conviction is for the possession, for the purpose of sale, of spirituous, vinous, and malt liquors containing in excess of 1 per cent, of alcohol by volume; punishment fixed at confinement in the penitentiary for one year.

There are two counts in the indictment. The first charges the unlawful possession, for the purpose of sale, of spirituous, vinous, and malt liquor capable of produeing intoxication. The second count charges the unlawful possession, for the purpose of sale, of spirituous, vinous, and malt liquor containing in excess of 1 per cent, of alcohol by volume. The conviction is upon the second count.

The appellant’s premises were searched, and 100 bottles of beer on ice were found, which th'e witness declared was malt liquor capable of producing intoxication. It seems that the witness did not drink any of it at the time, but drank some of it at a later date; that he reached the conclusion from the odor and taste of the article that it was beer and was intoxicating, though the quantity which he drank did not produce intoxication. The officer took possession of the bottles and delivered some of them to the county attorney, who testified that the liquid was “beer,” a malt liquor capable of producing intoxication. The contents of one of the bottles was analyzed by a chemist at Houston, who declared it to be beer containing 4.55 per cent, of alcohol.

In. his bills of exceptions, appellant complains that, over his objection, the court permitted the receipt in evidence of the testimony of the chemist ‘mentioned. Appellant takes the position that the law required the officer to preserve all the liquor seized, and that his delivery of any of the seized property to a chemist for analysis was illegal to a degree that rendered the testimony of the result of the analysis inadmissible. The contention is based upon the construction of article 692, P. C. 1925, from which we take the following:

“All liquors and property so seized shall be preserve^ for use as evidence in the trial of any action growing out of such seizure and all officers seizing such liquors or property are hereby required to mark the date of the seizure and the name of the person from whom seized. Any officer who shall give away or dispose of any intoxicating liquor in violation of the provisions of this article, or who shall willfully make a false report of intoxicating liquors or personal property used for the purpose of violating the intoxicating liquor laws, seized by him, shall be confined in the penitentiary for not less than one nor more than five years. Any officer who shall fail to comply with any other provision of this article shall be fined not less than twenty-five nor more than one hundred dollars, or be imprisoned in jail not more than sixty days, or both.”

We do not find ourselves in accord with the view of the appellant. A similar point was made in the case of Austin v. State, reported in 97 Tex. C. R. 360, 261 S. W. 1035, in which case the sheriff who obtained possession of the property had failed to make a report of the receipt of it as required by the statute from which the quotation above is taken. From the opinion we quote:

“The learned trial judge, in the opinion of this court, correctly ruled that this omission was not an impediment to the use of the officer as a witness to facts within his knowledge relating to the seizure of the property, the identity of the possessor and other incidents of the transaction. * * * The learned trial judge, in our judgment, rightly held that the law was directed against carelessness and fraud of officers in their dealings with property seized by them without a warrant.”

A similar ruling was also made in the case of Burns v. State, 99 Tex. Cr. R. 252, 268 S. W. 950.

We will' add that aside from the report of the chemist, we think the evidence heard upon the trial to the effect that the liquid was “beer” would be sufficient to support that part of the indictment charging the possession of spirituous, vinous, and malt liquor containing in excess of 1 per cent, of alcohol by volume. This, for the reason that the court takes judicial knowledge of the fact that “beer”' is a malt liquor usable as a beverage and containing more than 1 per cent, of alcohol by volume. See Henson v. State, 103 Tex. Cr. R. 123, 280 S. W. 592.

The quantity and the circumstances under which the liquor was possessed were sufficient to support the finding of the jury that the beer was possessed for the purpose of sale.

The judgment is affirmed. 
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