In view of appellant's motion we have again examined the record and fail to discover therein any error *Page 291 which in our judgment calls for a reversal.
By a special charge which was refused, appellant sought to have the jury told they could not consider for any purpose the evidence of the officers as to finding a quantity of "choc beer" because it had not been shown to be intoxicating. We think the refusal of the court to withdraw this evidence not erroneous. The "choc beer" was shown to be in a state of fermentation. No effort was made to show it was intoxicating at the time of the raid but to support the charge that appellant possessed intoxicating liquor for the purpose of sale, the state appeared to rely upon the fact that whiskey was found and the testimony of witnesses who claimed to have seen appellant serving the whiskey to parties in the house. However, we think the large quantity of fermenting "choc beer" present was a circumstance which the jury might properly consider in connection with all other evidence before them.
The motion for rehearing is overruled.
Overruled.