No brief for appellant was on file when our opinion was written, and none was presented until upon motion for rehearing. The point upon which reliance is had to reverse the judgment escaped us. The indictment charged the transportation of *Page 389 "spirituous, vinous and malt liquors capable of producing intoxication." It is admitted by appellant's attorney that the proof is sufficient to show that the liquor being transported was intoxicating, but the contention is that the State having in the indictment specifically described the liquor as "spirituous, vinous and malt, was required to prove, not only that it was intoxicating, but that it was one of the particular kinds of liquor described, and that the State had failed to do this. Hendley v. State, 94 Tex.Crim. Rep., 250 S.W. 174. The evidence only refers to the liquor as "tequila" one of the witnesses more than once called it "spiritual" liquor. Upon being asked what he meant by calling it "spiritual", he said he meant "it would make you drunk". There is no evidence as to what "tequila" is nor how it is made, whether distilled, brewed or fermented, and unless in the absence of such evidence this court can have judicial knowledge that "tequila" is either a spirituous, vinous or malt liquor, it appears that appellant's contention must be sustained.
"Judicial notice or knowledge may be defined as the cogizance of certain facts which judges and jurors may properly take and act upon without proof because they already know them. It is said that the term 'judicial notice' means no more than that the court will bring to its aid and consider, without proof of the facts, its knowledge of those matters of public concern which are known by all well-informed people."
Corpus Juris, § 1807, Vol. 23.
"Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Other common statements of the rule are that the courts will take notice of whatever is, or ought to be, generally known within the limits of their jurisdiction; and that they ought not to assume ignorance of, or exclude from their knowledge, matters which are known to all persons of intelligence."
Corpus Juris, § 1810, Vol. 23.
We have failed to find any mention of "tequila" in our dictionaries, encyclopedias, or in the standard works on Intoxicating Liquors, such as Black, Joyce or Wollen and Thornton, while the ordinary intoxicants known to us as whiskey, beer and wine are frequently mentioned and discussed. Neither are we advised that information of the source and method of manufacture of "tequila" is so generally known as that it may be said to form the common knowledge of persons of ordinary intelligence. From the name we might assume that "tequila" was a Mexican liquor, and we know from the evidence it is intoxicating, but applying the rule as to judicial knowledge heretofore stated we cannot assume to know what is its source, nor *Page 390 how it is made, and therefore cannot know whether it is a spirituous, vinous or malt liquor.
It was not necessary to charge an offense under the statute for the State to allege that the liquor being transported by appellant was "spirituous, vinous or malt;" other methods of description could have been resorted to under the broad terms of the law (§ 1, Chap. 22, p. 53, 2d C. S. 38th Leg.); but having chosen to describe it as set out in the indictment we must hold that the State was bound to sustain the description by proof that the liquor came within one of the kinds designated.
Having failed to do this it follows that appellant's motion for rehearing must be granted, the order of affirmance set aside, and the judgment now be reversed and remanded.
Reversed and remanded.
ON STATE'S MOTION FOR REHEARING.