
    HENSON et al. v. STATE.
    (No. 9636.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.
    Rehearing Denied Eeb. 17, 1926.)
    On Motion for Rehearing.
    1. Intoxicating liquors <&wkey;236(l3).
    Under indictment charging possession of intoxicating liquor, proof that liquid is “beer” is sufficient — citing Words and Phrases, Second Series.
    2. Intoxicating liquors <&wkey;-224 — State under indictment held to have1 burden of proving that liquor possessed by defendants was intoxicating.
    Under indictment charging that defendants possessed for purpose of sale spirituous, vinous, and malt liquors containing in excess of 1 per cent, of alcohol, etc., state has burden of proving that liquor possessed by defendants was intoxicating.
    
      3. Intoxicating liquors <&wkey;236(l3) — Proof that liquor was intoxicating not made by proof that it was “choc beer” or that when manufactured it contained 2 per cent, of alcohol (Pen. Code 1925, art. 666).
    Under indictment based on Pen. Code 1925, art. 666, alleging that defendants unlawfully possessed for sale spirituous, vinous, and malt liquors containing in excess of 1 per cent. _ of alcohol, burden of proving that liquor was intoxicating was not made by proof that it was “choc beer,” or that at time of manufacture it contained 2 per cent, of alcohol by volume.
    4. intoxicating liquors 4&wkey;l39, 140 — Statutes relating to possession of intoxicating liquors and possession for sale denounce different offenses (Pen. Code 1925, arts. 666, 667).
    Pen. Code 1925, art. 666, denouncing possession of intoxicating liquors for sale, and article 667, denouncing possession of potable liquors containing in excess of 1 per cent, of aleo,hoi by volume, denounce different offenses-.
    Commissioners’ Decision.
    Appeal from District Court, Archer County ; H. R. Wilson, Judge.
    W. S. Henson and W. H. Pettigrew were convicted of unlawfully possessing for purpose of sale spirituous, vinous, and malt liquors, etc., and they appeal.
    Reversed and remanded.
    T. J. McMahon, of Wichita Palls, for appellants.
    Jas. Y. Allred, of Wichita Palls, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellants were convicted in the district court of Archer county and their punishment assessed at five years each in the penitentiary.

The record discloses that the appellants were charged by indictment and convicted under the first count thereof, which alleged that they “did then and there unlawfully possess, for the purpose of sale, spirituous, vinous, and malt liquors containing in excess of 1 per cent, of alcohol by volume, etc.” This was the only count submitted by the court to the jury, and the one upon which the conviction was based. There are several questions raised on this appeal, but, as the record is presented, there is only one question which we deem necessary to consider, and that is the sufficiency of the evidence to sustain the conviction. It will be observed from the above allegations in the indictment that appellants were charged with the unlawful possession for the purpose of sale of “spirituous, vinous- and malt liquors.”

The testimony upon the part of the state shows that appellants were arrested at a tent where there were a couple of barrels of water and many bottles full of what was denominated by the witnesses as “choc beer.” There is not a line of testimony showing how or from what choc beer is made, and in fact nothing to support the allegations of the indictment to the effect that it was spirituous, vinous, or malt liquors. Without proof by the state showing that choc beer was spirituous, vinous, or malt liquors to sustain the allegations in the indictment, there is but one thing for this court to do. and that is to hold that the evidence is insufficient to warrant the conviction. This court, in the case of Chaves v. State, 275 S. W. 1006, under a similar indictment, where the evidence showed that the appellant was in possession of tequila, and the state failed to prove that tequila was spirituous, vinous, and malt liquor, held that the evidence was insufficient to sustain the allegations of the indictment. Under the Chaves Case, supra, and the authorities therein cited, we are forced to the conclusion that the evidence is wholly insufficient to warrant the conviction, and the judgment of the trial court should be reversed and reminded, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Counsel for the state have filed a motion for rehearing, in which it is contended that, while there is no specific proof that “choc beer” was an intoxicating liquor, its designation as “beer,” together with the proof that it contained about 5 per cent, of alcohol at the time it was examined, and probably contained about 2 per cent, of alcohol at the time it was manufactured, would characterize it as an intoxicating liquor. While there is some conflict in the decisions of this state upon the subject, the great weight of judicial declaration is to the effect that, under an indictment charging the possession of intoxicating liquor, proof that the liquid was beer meets the legal requirement. See 1 Words and Phrases, Second Series, page 417; Black on Intoxicating Liquors, § 17, p. 18; Moreno v. State, 143 S. W. 156, 64 Tex. Cr. R. 660, Ann. Cas. 1914C, 863. In the case last mentioned great research is displayed in both the majority and dissenting opinions. The conclusion in the majority opinion that the proof that the beverage was beer was sufficient is in harmony with, as stated before, the great weight of authority, and with its correctness we find no occasion to take issue. The authorities cited in Moreno’s Case, supra, and elsewhere, take note of the fact, however, that not all beer is intoxicating, and, where the article in question is de-then proof scribed by some qualifying word, of its intoxicating character is demanded. From the majority opinion in Moreno’s Oas-e, supra, we quote:

“It may, therefore, be said that beer is a liquor infused with malt, and prepared by fermentation for use as a beverage. As a consequence, when ‘beer’ is called for at a place at which intoxicating drinks are sold, the bartender, having in view the primary meaning, as well as the common use of the word, is justified in inferring, and must reasonably infer, that malted and fermented beer is wanted; If any other kind of beer is desired, it is expected that qualifying words will be used, such as spruce beer, root beer, small beer, ginger beer, and the like, thus attaching a remote and secondary meaning to the word ‘beer,’ as descriptive of particular beverages.”

In the present instance, it was not “beer” that was possessed, but “choc beer.” In the indictment the state charged and assumed the burden of proving that the article possessed was intoxicating.. This proof was not made by merely proving that it was “choc beer”; nor was it done by proof that at the time of its manufacture it contained 2 per cent, of alcohol by volume. The statute upon which the prosecution is founded, namely, article 666, P. C. 1925, denounces the possession of intoxicating liquors for the purpose of sale. The < accompanying paragraph (article 667, P. O. 1925), of the same statute denounces the possession of “potable liquors * * * containing in excess of one per cent, of alcohol by volume.” These statutes denounce different offenses. See- Estell v. State, 240 S. W. 913, 91 Tex. Cr. R. 481. They were intended by the Legislature to meet the character of transaction now under consideration. If the state could not prove that the liquid was intoxicating, then it should have charged that the liquid possessed was “potable liquor containing in excess of 1 per cent, of alcohol by volume.” If the indictment had been so drawn, the proof in the present case would have been sufficient. As the case stands before this court, the appellants were indicted for one offense, namely, that denounced in article 666, P. C., and the proof established of a different offense, namely, that denounced in article 667, P. C.

The state’s motion for rehearing is overruled. 
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