CHRISTIAN, Judge.
The offense is possession of intoxicating liquor for the purpose of sale, the punishment confinement in the penitentiary for one year.
The facts upon which the prosecution was based are these: Officers found in appellant’s store three or four hundred empty bottles, labeled peach, pear and apricot extract, and in his smoke house in a large box well covered up with wheat bran four or five hundred bottles of extract. This extract was
capable of being used as a beverage and of producing intoxication. One witness for the state bought four bottles of pear extract from appellant at one time, and at the time of the purchase appellant did not have it on the shelves in his store, but went elsewhere to get it. The witness drank three bottles of the extract during the day, none of it being drunk in appellant’s store. The witness’ wife, in attempting to use the extract in baking cakes, found it unsuitable. The sheriff testified that he had seen and arrested drunk men around appellant’s place of business.
Appellant contends in his brief that the indictment is fatally defective because the purported liquor consisted of extract which could be lawfully possessed and sold. The indictment, in charging that appellant “did then and there unlawfully possess and have in his possession for the purpose of sale, liquors capable of producing intoxication,” is in substantial compliance with, the language of the statute, and conforms to the indictment sustained by this court in the case of Tucker v. State, 251 S. W. 1090; Article 666, Penal Code; Nowells v. State, 252 S. W. 550. The fact that the evidence heard by the grand jury and adduced on the trial of the case might not sustain the allegations contained in the indictment would not in itself invalidate the indictment. The courts will not go behind the action of the grand jury to inquire as to what evidence they had or did not have before them when considering whether or not they would present an indictment. See Branch’s Annotated Penal Code, Section 484, page 251, and authorities cited. The indictment being sufficient, appellant’s contention cannot be sustained.
Appellant’s second complaint is that the jury, after having retired to deliberate upon the case, received other testimony. The specific complaint is, that one of the jurors said he had drunk flavoring extract and knew it would make a man drunk, and that the statement was also made by a juror that from his personal knowledge whiskey and water when mixed in equal quantities would produce intoxication. The testimony shows that some of the jurors heard the statements complained of, while others were unconscious that such statements had been made. Several of the jurors testified that the verdict had been reached before the statements were made. None of the jurors testified that the statements were made before the verdict was reached. Appellant received the minimum term. In this condition of the record, the court was warranted in reaching the conclusion that no testimony was received by the jury after
its retirement, before the verdict was reached. It follows that the trial court did not abuse his discretion in refusing a new trial on the ground of misconduct of the jury. Harrison v. State, 283 S. W. 173.
Appellant’s bill of exception No. 2 assigns as error the failure of the court to instruct the jury to the effect that if, after the officers notified appellant that it was a violation of the law to sell the extract offered in evidence, appellant withdrew such extract from sale and stored it in his smoke house in the hope of returning it to the person from whom it was purchased and receiving credit therefor, it was immaterial whether such extract was covered up or hidden, as the covering up or hiding of such extract would be no evidence of appellant’s guilt. The court states in his qualifications of the bill that the charge was refused because it was on the weight of the evidence and further because it was covered by the main charge. The court ruled correctly in refusing to give this charge. It singles out certain portions of the evidence in the case, and is a charge on the weight thereof.
By bill of exception No. 3 appellant complains of the action of the court in refusing to instruct the jury, as requested by him, that he had a perfect legal right to purchase any amount of the extract introduced in evidence that he might desire to purchase, and that the amount of extract possessed by him on the date mentioned in the indictment was immaterial and could not be considered as evidence of his guilt, and, further, that he could not be convicted unless the jury believed beyond a reasonable doubt that he was knowingly and unlawfully selling such extract as a beverage, even though he was carrying an unusually large stock for his trade. The court qualifies appellant’s bill of exception with the statement that the charge was refused because on the weight of the evidence, and further because the matters embodied therein were covered in the main charge. The court’s action must be sustained. The instruction requested is clearly a charge on the weight of the evidence.
Appellant takes the position that the requested instruction should have been given for the reason that possession of flavoring extract for purpose of sale cannot constitute an offense, in the absence of proof showing that such extract is capable of producing intoxication and is being sold as a beverage. He contends that Article 671 P. C., providing, in substance, that proof of possession of more than one quart of intoxicating liquor shall be prima-facie evidence of guilt, but that the defendant shall
have the right to introduce evidence showing the legality of such possession, does not apply to the possession of more than a quart of flavoring extract, and that the burden of proving a sale of such extract as a beverage must be discharged by the state before a conviction for the offense of possessing intoxicating liquor for purpose of sale can be sustained. Appellant predicates his proposition on the fact that Article 674 P. C. excepts from the provisions of Articles 666, 667, 672 and 673 P. C. flavoring extract when manufactured and sold for a lawful purpose and not as a beverage. Appellant reserved no exception to the action of the court in charging the provisions of Article 671 P. C., and the question of the applicability of this charge to the facts cannot be reviewed. 'Further, the determination of the point presented by. appellant’s bill of exception No. 3 does not require us to decide whether the state is required to show a sale of extract as a beverage in order to bring it within the definition of intoxicating liquor. The evidence in this case is sufficient to show a sale of the extract in question as a beverage, and that such extract was capable of producing intoxication. Being sold as a beverage and as such being intoxicating, it became an intoxicating liquor under the provisions of Articles 666, 667, 672 and 673 P. C. Davis v. State, 292 S. W. 1109. It follows that appellant was subject to prosecution for possessing intoxicating liquor for the purpose of sale, and that in deliberating upon a verdict the jury were- warranted in considering the amount of extract possessed by him as a circumstance bearing on the issue of guilt.
Appellant complains of the action of the trial court in refusing to instruct the jury to return a verdict of not guilty.
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CHRISTIAN, Judge.
The offense is possession of intoxicating liquor for the purpose of sale, the punishment confinement in the penitentiary for one year.
The facts upon which the prosecution was based are these: Officers found in appellant’s store three or four hundred empty bottles, labeled peach, pear and apricot extract, and in his smoke house in a large box well covered up with wheat bran four or five hundred bottles of extract. This extract was
capable of being used as a beverage and of producing intoxication. One witness for the state bought four bottles of pear extract from appellant at one time, and at the time of the purchase appellant did not have it on the shelves in his store, but went elsewhere to get it. The witness drank three bottles of the extract during the day, none of it being drunk in appellant’s store. The witness’ wife, in attempting to use the extract in baking cakes, found it unsuitable. The sheriff testified that he had seen and arrested drunk men around appellant’s place of business.
Appellant contends in his brief that the indictment is fatally defective because the purported liquor consisted of extract which could be lawfully possessed and sold. The indictment, in charging that appellant “did then and there unlawfully possess and have in his possession for the purpose of sale, liquors capable of producing intoxication,” is in substantial compliance with, the language of the statute, and conforms to the indictment sustained by this court in the case of Tucker v. State, 251 S. W. 1090; Article 666, Penal Code; Nowells v. State, 252 S. W. 550. The fact that the evidence heard by the grand jury and adduced on the trial of the case might not sustain the allegations contained in the indictment would not in itself invalidate the indictment. The courts will not go behind the action of the grand jury to inquire as to what evidence they had or did not have before them when considering whether or not they would present an indictment. See Branch’s Annotated Penal Code, Section 484, page 251, and authorities cited. The indictment being sufficient, appellant’s contention cannot be sustained.
Appellant’s second complaint is that the jury, after having retired to deliberate upon the case, received other testimony. The specific complaint is, that one of the jurors said he had drunk flavoring extract and knew it would make a man drunk, and that the statement was also made by a juror that from his personal knowledge whiskey and water when mixed in equal quantities would produce intoxication. The testimony shows that some of the jurors heard the statements complained of, while others were unconscious that such statements had been made. Several of the jurors testified that the verdict had been reached before the statements were made. None of the jurors testified that the statements were made before the verdict was reached. Appellant received the minimum term. In this condition of the record, the court was warranted in reaching the conclusion that no testimony was received by the jury after
its retirement, before the verdict was reached. It follows that the trial court did not abuse his discretion in refusing a new trial on the ground of misconduct of the jury. Harrison v. State, 283 S. W. 173.
Appellant’s bill of exception No. 2 assigns as error the failure of the court to instruct the jury to the effect that if, after the officers notified appellant that it was a violation of the law to sell the extract offered in evidence, appellant withdrew such extract from sale and stored it in his smoke house in the hope of returning it to the person from whom it was purchased and receiving credit therefor, it was immaterial whether such extract was covered up or hidden, as the covering up or hiding of such extract would be no evidence of appellant’s guilt. The court states in his qualifications of the bill that the charge was refused because it was on the weight of the evidence and further because it was covered by the main charge. The court ruled correctly in refusing to give this charge. It singles out certain portions of the evidence in the case, and is a charge on the weight thereof.
By bill of exception No. 3 appellant complains of the action of the court in refusing to instruct the jury, as requested by him, that he had a perfect legal right to purchase any amount of the extract introduced in evidence that he might desire to purchase, and that the amount of extract possessed by him on the date mentioned in the indictment was immaterial and could not be considered as evidence of his guilt, and, further, that he could not be convicted unless the jury believed beyond a reasonable doubt that he was knowingly and unlawfully selling such extract as a beverage, even though he was carrying an unusually large stock for his trade. The court qualifies appellant’s bill of exception with the statement that the charge was refused because on the weight of the evidence, and further because the matters embodied therein were covered in the main charge. The court’s action must be sustained. The instruction requested is clearly a charge on the weight of the evidence.
Appellant takes the position that the requested instruction should have been given for the reason that possession of flavoring extract for purpose of sale cannot constitute an offense, in the absence of proof showing that such extract is capable of producing intoxication and is being sold as a beverage. He contends that Article 671 P. C., providing, in substance, that proof of possession of more than one quart of intoxicating liquor shall be prima-facie evidence of guilt, but that the defendant shall
have the right to introduce evidence showing the legality of such possession, does not apply to the possession of more than a quart of flavoring extract, and that the burden of proving a sale of such extract as a beverage must be discharged by the state before a conviction for the offense of possessing intoxicating liquor for purpose of sale can be sustained. Appellant predicates his proposition on the fact that Article 674 P. C. excepts from the provisions of Articles 666, 667, 672 and 673 P. C. flavoring extract when manufactured and sold for a lawful purpose and not as a beverage. Appellant reserved no exception to the action of the court in charging the provisions of Article 671 P. C., and the question of the applicability of this charge to the facts cannot be reviewed. 'Further, the determination of the point presented by. appellant’s bill of exception No. 3 does not require us to decide whether the state is required to show a sale of extract as a beverage in order to bring it within the definition of intoxicating liquor. The evidence in this case is sufficient to show a sale of the extract in question as a beverage, and that such extract was capable of producing intoxication. Being sold as a beverage and as such being intoxicating, it became an intoxicating liquor under the provisions of Articles 666, 667, 672 and 673 P. C. Davis v. State, 292 S. W. 1109. It follows that appellant was subject to prosecution for possessing intoxicating liquor for the purpose of sale, and that in deliberating upon a verdict the jury were- warranted in considering the amount of extract possessed by him as a circumstance bearing on the issue of guilt.
Appellant complains of the action of the trial court in refusing to instruct the jury to return a verdict of not guilty. We think the evidence was sufficient to sustain the verdict of the jury.
By bill of exception No. 5 appellant complains of the action of the court in charging the jury as follows:
“You are instructed that the laws of the State of Texas provide that if any person shall either directly or indirectly possess for the purpose of sale, liquors capable of producing intoxication, by whatever name it may be called, shall be deemed guilty of a violation of the law, and provides a penalty of not less than one nor more than five years in the state penitentiary.”
Appellant’s objection to this charge is that it denied appellant the right to possess the extract in question for the purpose of sale, regardless of whether said extract was to be sold legally or illegally. The court states in his qualification of the bill that the matter complained of by appellant was fully explained in the main charge. An inspection of the court’s
charge shows that immediately following the instruction complained of by appellant an instruction was given, which reads as follows:
“It is not unlawful for any person to possess for the purpose of sale extracts,' known as peach, pear and apricot, and the medicinal preparation known as Jamaica ginger or Jake, when possessed and sold for any purpose other than a beverage, even though the same may be intoxicating liquor, but it is unlawful to possess for the purpose of sale either of such preparations when the same is possessed and sold as a beverage provided such preparations are intoxicating liquor.”
We are unable to see how appellant could have been prejudiced by the charge complained of when it is considered in connection with the succeeding instruction. We are constrained to overrule appellant’s contention.
By bill of exception No. 6 appellant complains of the use of the term “or capable of being so used” found in paragraph two of the court’s charge. Paragraph two reads as follows:
“Any liquor intended for use as a beverage, or capable of being so used, which contains alcohol, either obtained by fermentation, or by the additional process of distillation, or whatever name it may be called, in such proportion that it will produce intoxication, when taken or drank in reasonable quantities by an ordinary person, and that will produce intoxication, when taken or drank in such quantities, is liquor capable of producing intoxication, within the meaning of the law.”
Appellant objects to this charge on the ground that the use of the term “or capable of being so used” abridged the right of appellant to possess intoxicating liquor under conditions which might be lawful, and deprived him of the benefit of paragraph four of the court’s charge to the. effect that the possession of extract was lawful when possessed and sold for any purpose other than as a beverage, even though the same was an intoxicating liquor.
Appellant’s contention cannot be sustained. It was incumbent on the state to show that the liquor in question was an intoxicating liquor. Primarily, under the indictment in this case, it was necessary for the facts to show that the liquor possessed by appellant was a liquor capable of producing intoxication. In the charge in question, the court undertook to announce a standard by which the jury could determine whether a liquor intended for use as a beverage, or capable of being so used, was capable of producing intoxication. Appellant’s bill of exception does not challenge the sufficiency of the standard
announced by the court, but is restricted to the criticism that the court, in effect, instructed the jury that any liquor capable of being used as a beverage, which would produce intoxication, was an intoxicating liquor. We are unable to agree with appellant that the charge is susceptible of this construction.
By bill of exception No. 7 appellant complains of the action of the court in admitting, over his objection, testimony that Jake or Jamaica ginger, if drunk by a man in an ordinary way, would produce intoxication. The bill manifests no error, in that it does not contain a sufficient statement of the facts involved to enable this court to determine the question of error. See Branch’s Annotated Penal Code, Section 207, page 131.
By bill of exception No. 8 appellant complains of the action of the District Attorney in taking a bottle of the extract introduced in evidence in his hand in view of the jury, and saying in his argument:
“You can never hope to enforce your prohibition law as long as these little merchants like Clarence Holliman are allowed to sell this damnable peach extract containing fifty and fifty-four per cent alcohol.”
Appellant objected to this argument and requested the court to withdraw the remarks from the jury and instruct them not to consider such remarks. The court refused the request, and as a qualification of appellant’s bill states that the District Attorney was drawing conclusions from the testimony, and that the extract exhibited to the jury had been offered in evidence without objection.
We do not believe that the argument complained of is of the character that would call for reversal. Particularly is this true in view of the fact that the evidence was sufficient to warrant a conviction, and that appellant received the minimum penalty.
Finding no error 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 and approved by the Court.