Appellant contends in his motion for rehearing that we were in error in holding that the proof met the allegation contained in the indictment, to-wit: that the appellant unlawfully possessed for the purpose of sale spirituous, vinous and malt liquor capable of producing intoxication. The state saw fit to make this allegation in the indictment and for the purpose of meeting the allegation it introduced testimony showing that the appellant was in possession of fifty-nine quarts of tequila. We have searched the record for any testimony that shows or tends to show that tequila is either a spirituous, vinous or malt liquor, and it is silent in this regard. The proof shows that tequila is intoxicating but this is not sufficient to meet the requirement that the allegation in the indictment and the proof must correspond. "Either spirituous, vinous or malt liquor may be intoxicating, yet neither of these classes, nor all of them combined, include all that is meant by intoxicating liquors." Black, on Intoxicating Liquors, page 3.
The identical question here presented was decided in favor of the appellant's contention by this court speaking through Judge Lattimore in the case of Chaves v. State, 275 S.W. 1006. Also see Toler v. State, 260 S.W. 1043.
Because there is no proof that the liquor found in the appellant's possession was either spirituous, vinous or malt liquor, his motion for rehearing will be granted, the judgment of affirmance set aside and the case will be 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 Court. *Page 35