Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.
The charge was specifically selling liquor capable of producing intoxication. Only one witness testified. He said he bought a bottle of beer, — what was called home brew, — from appellant, and that after drinking same he felt its intoxicating effects, and *Page 578 expressed his belief that the drinking of such liquor in quantities practicable for a man to drink, would intoxicate him. In his charge to the jury the court told them that beer was an intoxicating liquor. However the case was submitted to the jury upon the specific instruction that before they could find appellant guilty they must believe from the testimony beyond a reasonable doubt that he sold liquor capable of producing intoxication. The charge above mentioned was excepted to as not the law; as contradictory of other parts of the charge, and as on the weight of the evidence. There was no testimony before the court as to the alcoholic content of the liquor sold by appellant. The date of the alleged offense was in August 1933, prior to the taking effect of Chap. 116, Acts Regular Session of 43rd Legislature, regulating the sale of beer in certain parts of the State of Texas, which last named law took effect on September 15, 1933, and specifically provides that "Nothing herein contained shall be construed as preventing the enforcement of all laws now in force," etc.
The prosecution arose in Comanche County, Texas. Appellant's only plea was that of not guilty. There was no question raised as to the fact that Comanche County was or was not a part of this State in which local option prevailed prior to the taking effect of the constitutional amendment in 1918. We do not think the court committed any error in that part of the charge mentioned. We think the facts support the judgment of guilty.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.