
    DAVIS v. STATE.
    No. 18592.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1936.
    Max Coleman, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Alty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was convicted of possessing “home brew” beer, alleged to contain alcohol in excess of ½ of 1 per centum by volume, and that said beer was contained in cases to which no stamp was affixed showing the payment of the tax due to the state on such liquor, and his punishment was assessed at a fine of $100.

It appears from the record that a deputy sheriff, accompanied by Bedford Carpenter, went to the home of appellant, searched his premises and found two cases of canned beer with the tax on it paid; that they found 85 bottles, which they denominated “home brew” beer, and which was in containers on which the tax had not been paid; that they did not know what per cent, of alcohol it contained, if any, nor could they say it was intoxicating. Beer is defined in section 1 of article 2 of chapter 467, General and Special Laws, Forty-Fourth Legislature, Second Called Session 1935 (Vernon’s Ann.P.C. art. 667 — 1), as a beverage which contains ½ of 1 per centum of alcohol by volume and no more than 4 per centum by weight. Unless it contained such an amount of alcohol it would not come within the definition of beer as above defined and would not be subject to a beer tax. We are of the opinion that the testimony is not sufficient to meet the allegations in the information and justify his conviction. The other questions presented need not be discussed in view of the disposition' that we are making of this case.

Believing the testimony to be insufficient, the judgment of the trial court is reversed arid the cause remanded.

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.  