Challenging the correctness of the affirmance of the judgment on the original hearing, it is insisted that eliminating the testimony which, as pointed out in the original opinion, was inadmissible, the record is void of evidence supporting the verdict declaring the appellant guilty of the offense charged in the indictment. The witness Ben D. Lee exhibited ten bottles of a liquid shown to have been taken from the possession of the appellant upon the occasion of his arrest. The witness testified that he had analyzed the liquid which the testimony described as "beer" and that the analysis revealed an alcoholic content of 5.92 per cent which according to the witness, was the average alcoholic content of beer manufactured for the purpose of sale. The witness further said that the beer mentioned was intoxicating liquor.
The indictment is distinguishable from that considered in Cantu v. State, 101 Tex.Crim. Rep., wherein the indictment charged the transportation of spirituous, vinous and maltliquors capable of producing intoxication. It was held that the burden upon the State was imperative to prove that the liquor was spirituous, vinous or malt. In the indictment it is charged that the appellant possessed for the purpose of sale "spirituous, vinous and intoxicating liquor capable of producing intoxication." Under the averment proof that appellant possessed for the purpose of sale intoxicating liquor or liquor capable of producing intoxication was relevant and competent and was believed by the jury to be sufficient to support the verdict. See Tucker v. State, 94 Tex. Crim. 505; Russell v. State, 228 S.W. Rep. 950; Taylor v. State,105 Tex. Crim. 465; Copello v. State, 95 Tex.Crim. Rep.; Cantu v. State, 101 Tex.Crim. Rep.. The burden resting upon the State to prove that the liquid which the appellant was selling 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. See Moreno v. State, 64 Tex.Crim. Rep.; Eubank v. State, 104 Tex. Crim. 628 (see page 632) and authorities cited. Moreover, in the present instance the witness Lee testified specifically that the liquor in question was intoxicating.
The motion for rehearing is overruled.
Overruled. *Page 5