Chemist Hinzie testified that he analyzed six samples of beer brought him by the sheriff of Anderson county shortly after June 19th. He said the alcoholic content of said bottles ranged from five to eleven per cent. His testimony was objected to as evidencing an effort on the part of the state to prove a different offense from that charged in the indictment herein. The offense charged was the possession of intoxicating liquor for purposes of sale. Appellant contended that the state was trying to get a conviction by proving him in possession of liquor having an alcoholic content of more than one per cent by volume, a different offense from that charged. Appellant's error in this matter was manifested by the fact that the state followed the above proof with an additional statement of Mr. Hinzie, — that liquor having the alcoholic content testified to would be intoxicating. That part of the testimony objected to was but a predicate leading up to and forming the basis for Mr. Hinzie's provable conclusion that the liquor was in fact intoxicating. In the cases cited by appellant in his motion for rehearing, we have no such state of facts.
Appellant admitted on the stand that he sold liquor and possessed a quantity of it, but claimed that if it was intoxicating he did not know it. The beer actually sold by appellant in person to Knott and Brown was shown to be intoxicating. The seventy-eight bottles of beer found in his possession was shown, by the analysis of Mr. Hinzie of six bottles thereof, to be also intoxicating. Appellant's own witness Wiggington, who was at the place when the officers raided it, said on cross-examination, when asked how much of "that beer" would intoxicate him, that he imagined it would take three or four bottles. Mr. Brown and the other officers testified that the beer they found in appellant's possession was not Ajax or Pearl beer but was home brew, — that it was dark and had *Page 244 a sediment. Appellant claimed that he sold nothing but Ajax and Pearl beer. Another defense witness admitted on cross-examination that the night before the raid he brought into appellant's place a sack containing bottles of liquid, from an outhouse some 150 feet away. He admitted that these bottles were not in a case. Another witness, an officer, testified that about a month before the raid in question appellant phoned him to come to his place, and when he got out there he found fifteen or twenty persons drinking beer whom appellant asked him to get away from the place. He said several of these people were under the influence of intoxicating liquor.
We are still of opinion that there was no error in the refusal of the court to give a requested charge telling the jury to acquit appellant if he did not know that the intoxicating liquor was at his place. In our opinion, Banton v. State, 119 Tex.Crim. Rep., 46 S.W.2d 703, seems not in point.
We find nothing in the record suggesting that when the beer found in appellant's possession was analyzed by Mr. Hinzie, it was in a different condition from that which obtained when the place was raided by the officers, hence Gardner v. State,89 Tex. Crim. 171, 229 S.W. 856, has no application. We are not able to agree with appellant's contention that the testimony in this case is not sufficient to support the judgment of conviction.
The motion for rehearing will be overruled.
Overruled.