
    TOLAR v. STATE.
    (No. 8185.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.
    On the Merits. April 16, 1924.)
    1. Bail &wkey;>70 — Appeal bond not approved by judge confers no jurisdiction.
    Under Code Cr. Proc. 1911, art. 904, an appeal bond approved only by sheriff and not by the judge is defective, and confers no jurisdiction on the appellate-court.
    2. Intoxicating liquors <&wkey;236( 13) — Evidence held insufficient to sustain conviction for manufacture of “spirituous” or “malt” liquors.
    Evidence of the finding in defendant’s possession of still and mash, the liquor from which two witnesses testified would be intoxicating if drunk in sufficient quantity, held- insufficient to sustain a conviction for unlawful manufacture, under Acts Eirst Called Sess. 87th Leg. (1921) c. 61, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, art. 58S%); such liquid being neither “spiritous,” “vinous,” or “malt" liquor, within the statute.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Malt Liquor; Spirituous Liquors.]
    (&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    T. L. Tolar was convicted of manufacturing intoxicating liquor, and he appeals.
    Appeal dismissed, and subsequently reinstated, and judgment of conviction reversed, and cause remanded.
    J. W. Culwell, of Amarillo, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor, with punishment of one year in the penitentiary.

Appellant seeks enlargement from custody pending appeal upon a bond purported to have been executed in conformity to article, 904 of our C. C. P. The bond is approved by the sheriff only. It fails to also have the approval of the trial judge. In this respect it is defective, and no jurisdiction was conferred upon this court by reason thereof. See article 904, C. C. P.; Chumley v. State, 83 Tex. Cr. R. 54, 201 S. W. 176; King v. State, 83 Tex. Cr. R. 304, 203 S. W. 52; Johnson v. State, 83 Tex. Cr. R. 376, 203 S. W. 903; Gray v. State, 88 Tex. Cr. R. 1, 224 S. W. 513.

For the defect in the bond heretofore pointed out, this appeal must be dismissed.

On the Merits.

At a former day the appeal was dismissed because of a defective appeal bond. It now appears that this defect has been corrected, and the appeal is reinstated.

Section 1 of our present liquor law (chapter 61, p. 233, Acts First Called Sess. 37th Leg. [Vernon’s Ann. Pen. Code Supp. 1922, art. 58814]) makes it unlawful to manufacture spirituous, vinous, or malt liquor, or medicated bitters, capable of producing intoxication, or any other intoxicant whatever. Section 2 makes it unlawful to manufacture spirituous, vinous, or malt liquor, or medicated bitters, or any potable liquor, mixture, or preparation, containing in excess of 1 per cent: of alcohol by volume. It would therefore appear that, under proper allegations, one might be charged with an offense for making almost any character of liquor or mixture which is intoxicating, or which contains more than 1 per cent, of alcohol.

The indictment in the present case alleges only, that appellant manufactured spirituous, vinous, and malt liquor capable of producing intoxication. The point is made that the evidence fails to sustain the allegations.

The officers went to appellant’s premises, and in a dugout found two 50-gallon barrels of mash. Hanging in the dugout they found the main part of a coil or worm, and in the barn some distance from the dugout a 15-gallon boiler suitable for .distilling liquor. Inside this can they found another portion of the coil. The top of the still was-found in a can in appellant’s house, which can also contained some charcoal. ' In the main coil found hanging in the dugout was about a spoonful of liquid which smelled like whisky, and which one witness said, in his opinion, was corn whisky. The coil was sticky all over. The charcoal had the smell of whisky about it, but the still itself bore no odor which was noticeable. In the dugout were a number of fruit jars, some Containing fruit, but the majority being empty. No whisky was discovered about the premises, unless the small quantity in the coil was intoxicating. There was no testimony showing when or by whom the coil or charcoal had been used, or whether it was brought to appellant’s premises before or after the liquor found its way into the coil and the odor of whisky about the charcoal. One of the officers testified that he tastéd. some of the liquor from the mash in the barrels, and that in his opinion it would intoxicate, if a sufficient quantity of it was drunk. A witness who appears to have been familiar with the process of distilling liquor testified that it required about 14 days for-mash to reach the proper stage of fermenta- • tion to be in proper condition for distillation, and that the mash in question would not have been ready until the expiration of an additional 4 or 5 days. His testimony is further to the effect that just before it was-ready for distillation a person could drink enough of the liquor from it to become intoxicated.

In its general use tire term “spirituous liquor” is that made by the process of distillation. 'Black on Intoxicating Liquor, §§ 2, 3; Joyce on Intoxicating Liquor, §§ 7, 8. The Legislature may broaden its meaning, but did not dp so in our statute. Other means were employed to cover other character of intoxicants. “Malt liquor” embraces porter, ale, beer, and the like, which are the result or-product of a process by which grain, usually barley, is steeped in water to the point of germination, the starch of the grain being thus converted into saccharine matter, which is kiln dried, then mixed with hops, and by a further process of brewing made into a beveragfe. Black on Intoxicating Liquor, § 6; Joyce on intoxicating Liquor, § 12. The foregoing definitions of spirituous and malt liquors have been recognized by this court. Hendley v. State, 94 Tex. Cr. R. 40, 250 S. W. 174. There is no pretense that the liquor from the mash was a “vinous” liquor. Black on Intoxicating Liquor, § 5; Joyce on Intoxicating Liquor, § 13, p. 13, and it would seem to be equally certain that it was neither a “spirituous” or- “malt” liquor. It may have contained more .thah 1 per cent, of alcohol by volume; if so, this is not alleged nor proven. It may have contained sufficient alcohol to be intoxicating; if so, the presence of the alcohol is accounted for through the ordinary process of fermentation; but the liquor was neither distilled nor brewed. The state being bound by the descriptive allegations in the indictment as to the particular kind of liquor accused was charged with manufacturing, the evB dence fails to meet them. There can be little doubt that appellant intended to make whisky from the mash found, and to use the still for that purpose, but the matter had not proceeded far enough to make him guilty of the manufacture of the character of liquor he is alleged to have made. If he had abandoned the enterprise where it was interrupted by the officers, the contemplated offense would have been incomplete.

It follows from what has been said that in our opinion the state failed to make out its case as alleged, and the judgment must be reversed, and the cause remanded.  