CHRISTIAN, Judge.
The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.
Armed with a search warrant, officers went to appellant’s residence on July 23, 1930, for the purpose of making a search for intoxicating liquor. Appellant was absent from home when- the search was made. The officers testified that the house was locked and that nobody was at home. In a trunk in one of the rooms the officers found approximately seventeen pint bottles filled with a liquid of some character. There was also an empty bottle in the room containing a small amount of liquid. The officers made no test at the time to determine the character of liquid contained in the bottles. No test of any character was made until January 8, 1931, approximately six months after the search. On the date last referred to— which was the day of the trial, the officers tasted and smelled the liquid. During the time intervening between the day of the search and the date •.upon which the trial was had, the liquid remained in the office of the
justice of the peace where the officers had placed it. Touching the character of the liquid, one of the officers testified as follows: “That’s what I term beer; my testimony is, I found beer there at Charley’s house; and I took what I term beer into Dr. Goodner’s office. * * * I know that it is beer, — I have tasted it. I tasted it awhile ago. We captured this beer along about July twenty-seventh, nineteen hundred and thirty. I did not taste it then. I have not tasted it until today. I don’t know as a matter of fact that it was inoxicating at the ime we got it. * * * I don’t know whether that stuff had fomented sufficiently to become intoxicating since then or not. * * * I think I took about two swallows. * * * As to my swearing it would make you drunk, I didn’t say it is intoxicating, I said it was beer. As to what kind of beer it is, it is what you term ‘home brew’; and as to whether or not it is intoxicating liquor, I didn’t drink that much of it. * * * Now in regard to: if it is beer, the presumption is that it is intoxicating; beer is supposed to be intoxicating.”
This witness testified further on cross-examination as follows: “I can tell from taking two swallows of liquor whether or not it is beer. I can tell whether or not it will intoxicate me; and as to why I didn’t swear awhile ago it was intoxicating, you didn’t ask me. I am willing to give my opinion here that this stuff, if a man drinks enough of it, will intoxicate him; I believe it would. As to my knowing it would, I wouldn’t want to try it. Being asked if I know it — I say yes.”
Another of the searching officers, testifying for the state, said: “It smelled like beer. I sampled this beer; I drank some of it. I sampled it. I just sampled it, — as to whether or not it is intoxicating liquor or not, — well,—I know what I am going to say, — well no. Well now as to knowing whether or not it was intoxicating liquor, and knowing whether or not it was intoxicating at the time we got it there, — I know it was beer, is all I know. * * * As to knowing whether or not it would make you drunk I believe it would. * * * I don’t know whether it is intoxicating or not; that’s what I testified to awhile ago.”
A third officer, who took a swallow or two of the liquor on the day of the trial, testified for the state, on direct examination, that the liquor was beer. He said further: “Now as to whether or not it is intoxicating, — well, you know I don’t know for sure about that.” On cross-examination, the witness said the liquor would make you drunk, if you drank enough of it.
Appellant testified that he did not possess beer at the time the officers made the search. He said that after he was arrested one Henry Alexander told him
he
had put the liquor in the trunk during appellant’s absence from home. Appellant’s daughter testified that appellant had no beer in the house. Other witnesses for appellant gave testimony tending to support the theory that appellant did not possess beer. There was no
testimony tending to show that appellant had sold or offered to sell intoxicating liquor.
There was an issue as to whether the liquor was beer or what is commonly called “home brew.” If the liquor was “home brew,” the evidence to the effect that it was intoxicating was not conclusive. One of the officers who tasted the liquor testified that he could not say whether or not it was intoxicating. None of the officers took over three swallows of the liquor. Under the testimony the jury would have been warranted in concluding that the liquor was not intoxicating. The court instructed the jury that “beer is a known intoxicant, and capable of producing intoxication.” The term “intoxicating liquor” was also defined in the charge. The jury were instructed, in substance, that if they entertained a reasonable doubt as to whether the liquor was intoxicating to acquit appellant. The term “home brew” was not mentioned in the charge. The issue as to whether the liquor was beer or “home brew” was not submitted to the jury, unless the instruction defining “intoxicating liquor” and advising the jury to acquit if they had a reasonable doubt as to whether the liquor was intoxicating should be considered sufficient to embrace the issue. Appellant timely excepted to the charge on the ground that the abstract statement that beer is a known intoxicant in effect nullified the instruction defining “intoxicating liquor,” and destroyed the effect of .the instruction submitting the issue as to the intoxicating character of the liquor. Further, appellant excepted on the ground that the charge in effect advised the jury that the liquor was intoxicating.
The opinion is expressed that the exceptions were well taken. Beer is, within the judicial knowledge of the court, an intoxicating liquor. Fulmer v. State, 115 Texas Crim. Rep., 239, 29 S. W. (2d) 789, and authorities cited. The burden resting upon the state in a given case to show that the liquor was intoxicating is discharged by the proof showing it to have been beer. Fulmer v. State, supra. In the present case, as heretofore stated, there was an issue as to whether the liquor was beer or “home brew.” The courts have no judicial knowledge that “home brew” is an intoxicating liquor. Minton v. State, 115 Texas Crim. Rep., 301, 29 S. W. (2d) 765, and authorities cited. If the liquor in question was “home brew” the burden rested upon the state to show that it was capable of producing intoxication. Minton v. State, supra. With no reference being made in the charge to “home brew,” the abstract statement that beer is a known intoxicant was calculated to impress the jury with the view that the court had determined that the liquor was beer, and that the question as to whether such liquor was intoxicating was foreclosed, as far as the jury were concerned. Not being informed that “home brew” is not a known intoxicant, and being advised in the charge that beer is judicially known to be an intoxicant, and the issue as to whether the liquor was “home brew” or beer not having been submitted, it is reasonable to
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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.
Armed with a search warrant, officers went to appellant’s residence on July 23, 1930, for the purpose of making a search for intoxicating liquor. Appellant was absent from home when- the search was made. The officers testified that the house was locked and that nobody was at home. In a trunk in one of the rooms the officers found approximately seventeen pint bottles filled with a liquid of some character. There was also an empty bottle in the room containing a small amount of liquid. The officers made no test at the time to determine the character of liquid contained in the bottles. No test of any character was made until January 8, 1931, approximately six months after the search. On the date last referred to— which was the day of the trial, the officers tasted and smelled the liquid. During the time intervening between the day of the search and the date •.upon which the trial was had, the liquid remained in the office of the
justice of the peace where the officers had placed it. Touching the character of the liquid, one of the officers testified as follows: “That’s what I term beer; my testimony is, I found beer there at Charley’s house; and I took what I term beer into Dr. Goodner’s office. * * * I know that it is beer, — I have tasted it. I tasted it awhile ago. We captured this beer along about July twenty-seventh, nineteen hundred and thirty. I did not taste it then. I have not tasted it until today. I don’t know as a matter of fact that it was inoxicating at the ime we got it. * * * I don’t know whether that stuff had fomented sufficiently to become intoxicating since then or not. * * * I think I took about two swallows. * * * As to my swearing it would make you drunk, I didn’t say it is intoxicating, I said it was beer. As to what kind of beer it is, it is what you term ‘home brew’; and as to whether or not it is intoxicating liquor, I didn’t drink that much of it. * * * Now in regard to: if it is beer, the presumption is that it is intoxicating; beer is supposed to be intoxicating.”
This witness testified further on cross-examination as follows: “I can tell from taking two swallows of liquor whether or not it is beer. I can tell whether or not it will intoxicate me; and as to why I didn’t swear awhile ago it was intoxicating, you didn’t ask me. I am willing to give my opinion here that this stuff, if a man drinks enough of it, will intoxicate him; I believe it would. As to my knowing it would, I wouldn’t want to try it. Being asked if I know it — I say yes.”
Another of the searching officers, testifying for the state, said: “It smelled like beer. I sampled this beer; I drank some of it. I sampled it. I just sampled it, — as to whether or not it is intoxicating liquor or not, — well,—I know what I am going to say, — well no. Well now as to knowing whether or not it was intoxicating liquor, and knowing whether or not it was intoxicating at the time we got it there, — I know it was beer, is all I know. * * * As to knowing whether or not it would make you drunk I believe it would. * * * I don’t know whether it is intoxicating or not; that’s what I testified to awhile ago.”
A third officer, who took a swallow or two of the liquor on the day of the trial, testified for the state, on direct examination, that the liquor was beer. He said further: “Now as to whether or not it is intoxicating, — well, you know I don’t know for sure about that.” On cross-examination, the witness said the liquor would make you drunk, if you drank enough of it.
Appellant testified that he did not possess beer at the time the officers made the search. He said that after he was arrested one Henry Alexander told him
he
had put the liquor in the trunk during appellant’s absence from home. Appellant’s daughter testified that appellant had no beer in the house. Other witnesses for appellant gave testimony tending to support the theory that appellant did not possess beer. There was no
testimony tending to show that appellant had sold or offered to sell intoxicating liquor.
There was an issue as to whether the liquor was beer or what is commonly called “home brew.” If the liquor was “home brew,” the evidence to the effect that it was intoxicating was not conclusive. One of the officers who tasted the liquor testified that he could not say whether or not it was intoxicating. None of the officers took over three swallows of the liquor. Under the testimony the jury would have been warranted in concluding that the liquor was not intoxicating. The court instructed the jury that “beer is a known intoxicant, and capable of producing intoxication.” The term “intoxicating liquor” was also defined in the charge. The jury were instructed, in substance, that if they entertained a reasonable doubt as to whether the liquor was intoxicating to acquit appellant. The term “home brew” was not mentioned in the charge. The issue as to whether the liquor was beer or “home brew” was not submitted to the jury, unless the instruction defining “intoxicating liquor” and advising the jury to acquit if they had a reasonable doubt as to whether the liquor was intoxicating should be considered sufficient to embrace the issue. Appellant timely excepted to the charge on the ground that the abstract statement that beer is a known intoxicant in effect nullified the instruction defining “intoxicating liquor,” and destroyed the effect of .the instruction submitting the issue as to the intoxicating character of the liquor. Further, appellant excepted on the ground that the charge in effect advised the jury that the liquor was intoxicating.
The opinion is expressed that the exceptions were well taken. Beer is, within the judicial knowledge of the court, an intoxicating liquor. Fulmer v. State, 115 Texas Crim. Rep., 239, 29 S. W. (2d) 789, and authorities cited. The burden resting upon the state in a given case to show that the liquor was intoxicating is discharged by the proof showing it to have been beer. Fulmer v. State, supra. In the present case, as heretofore stated, there was an issue as to whether the liquor was beer or “home brew.” The courts have no judicial knowledge that “home brew” is an intoxicating liquor. Minton v. State, 115 Texas Crim. Rep., 301, 29 S. W. (2d) 765, and authorities cited. If the liquor in question was “home brew” the burden rested upon the state to show that it was capable of producing intoxication. Minton v. State, supra. With no reference being made in the charge to “home brew,” the abstract statement that beer is a known intoxicant was calculated to impress the jury with the view that the court had determined that the liquor was beer, and that the question as to whether such liquor was intoxicating was foreclosed, as far as the jury were concerned. Not being informed that “home brew” is not a known intoxicant, and being advised in the charge that beer is judicially known to be an intoxicant, and the issue as to whether the liquor was “home brew” or beer not having been submitted, it is reasonable to
conclude that the jury, in reading that part of the charge to the effect that appellant should be acquitted if the jury entertained a reasonable doubt as to whether the liquor was capable of producing intoxication, entertained the belief that the court, as evidenced by the abstract instruction that beer is a known intoxicant, had reached the conclusion that the liquor was capable of producing intoxication. In the state of the record, with two of the officers testifying that the liquor was beer, and one saying that it was “home brew,” and the court instructing the jury that beer is intoxicating, in the absence of some information in the charge as to the distinction between beer and “home brew,” the jury could not have been reasonably expected to exercise their perrogative of determining whether the liquor was intoxicating.
Although the jury concluded that appellant possessed the liquor, we think they would have been warranted, under the evidence, in reaching the conclusion that it was possessed for beverage purposes, and not for sale. Appellant testified that he drank beer, but said that he did not sell beer, possess it for sale or offer it for sale. Appellant’s requested charge on this issue should, in our opinion, have been submitted to the jury. Such issue was not affirmatively submitted in the main charge.
The judgment is reversed and the cause remanded.
Reversed and
remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the undersigned members of the Court.
W. C. MORROW,
F. L. HAWKINS.