
    WEINBERG v. STATE.
    (No. 4445.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.)
    1. Intoxicating Liquors <@=>239(5) — Definition — Instructions.
    In a prosecution for selling liquor in local option territory, where it was exceedingly doubtful whether beverage was intoxicating, the court should have instructed the jury, as requested, that before they could convict they must believe the beverage to be an intoxicant, as defined by instruction.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 336.]
    2. Intoxicating Liquors <@=>233(2) — Appeal —Reversible Error.
    In a prosecution for selling liquor in local option territory, admission of testimony that sheriff took, from defendant’s residence some beer, wine, and whisky some time subsequent to alleged sale was reversible error; such liquor being bought for the purpose of entertaining guests attending marriage of his daughter.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 295.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Frank Weinberg was convictefd of selling intoxicating liquors in violation of the local option law, and he appeals.
    Reversed and remanded.
    J. E. Warren and W. E. Myres, both of Cleburne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of selling intoxicating liquors in. violation of the local option law; his punishment being assessed at a fine of $50 and 30 days’ imprisonment in the county jail.

He did not himself sell, but his son did in his absence. The state’s case was that the prosecuting witness went to appellant’s home and called to his minor son for a bottle of Budweiser. The boy handed him the bottle, which the witness drank. This witness leaves it exceedingly doubtful as to whether the beverage was intoxicating or not. The defendant’s theory was that he did not have Budweiser, but sold what he called Nearweiser, which seems to have been a nonintoxicating malt liquor. Under this view of the record we think the court should have instructed the jury, as requested by appellant, that before they could convict they must believe the beverage to be an intoxicant. If the liquor sold was not an intoxicant, or there was a reasonable doubt of that, appellant ha'd not violated the local option law. This special charge contained the accepted definition in our decisions as to what an intoxicant is under that law as follows:

“Any liquor intended for use as a beverage, or capable of being used, which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such proportion as it will produce intoxication when taken in such quantities as may practically be drunk, is an intoxicant.”

This has been recognized by the authorities and elementary writers as a proper definition of what is an intoxicant. Upon another trial this charge should be given. Appellant would not be guilty if he did not sell intoxicating liquors. The special charge lays down the recognized rule since the Decker Case was written by Judge Hurt in 39 Tex. Cr. R. 20, 44 S. W. 845. It is not necessary here to discuss Moreno’s Case, 64 Tex. Cr. R. 660, 143 S. W. 156, inasmuch as the question there decided is not involved.

There is another question we desire to mention as reversible. A month or such matter after this alleged sale the sheriff went, to the residence of appellant, and took from his residence some beer, wine, and whisky. This the evidence shows had been bought by appellant for a great number of guests who attended the marriage of his daughter. We are of opinion this testimony was not admissible. It was some time subsequent to the alleged sale, and was shown to have been bought, not for the purpose of selling, but for the purpose of entertaining his guests, or those who had been invited to be present at the marriage of his daughter and the jollification incident to it. This was some time after the alleged sale, and would have no relation to the sale of the bottle of Budweiser, or Near-weiser, referred to by the witnesses, and had no relation to the actual surroundings of that sale.

The judgment is reversed, and the cause remanded. 
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     