Fulmer v. State

29 S.W.2d 789, 115 Tex. Crim. 239, 1930 Tex. Crim. App. LEXIS 425

• Court: Court of Criminal Appeals of Texas
• Decided: June 11, 1930
• Docket: No. 13495.
• Status: Published

Opinion

CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

An officer searched appellant’s residence and found therein 158 bottles of beer, more than 10 gallons of unbottled beer and an empty fruit jar showing evidence of having contained whiskey. It appears that a young lady rented two of appellant’s rooms. This young lady stated to the officer when the search was made that she would assume the entire responsibility, as she had no one to take care of. Appellant testified that the beer belonged to the young lady who rented the rooms. Appellant was present when the search was made. There was testimony to the effect that automobiles frequently stopped at appellant’s home.

We are unable to reach the conclusion that the evidence is insufficient to support the conviction. Appellant contends that the state failed to offer any proof tending to show that the beer was intoxicating. It was undisputed that the liquor in question was beer. The burden resting upon the state to prove that such liquor was capable of producing intoxication was discharged by the proof showing it to be beer, which, within the judicial knowledge of the court, is an intoxicating liquor. Torres v. State, 18 S. W. (2d) 179; Moreno v. State, 143 S. W. 156; Eubank v. State, 286 S. W. 234.

The judgment is affirmed.'

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals arid approved by the Court. •