It is urged on motion for rehearing that the court below committed error under the facts in charging the jury that "beer" was an intoxicating liquor, claiming that the opinion in Walker v. State, 51 S.W.2d 721 is direct authority supporting his position. Only one witness testified, he being the alleged purchaser. His evidence on the kind of liquor purchased is as follows: "I have drunk beer, and I know what beer is. This was beer that I bought. I know what whisky is. This was beer that I bought."
The charge given in the present case is not like that found in Walker's case. There the charge unconditionally told the jury that beer was intoxicating. Here the court's charge reads as follows: "You are further instructed that if you believe from the evidence beyond a reasonable doubt that the liquid *Page 579 in question was beer, then you are instructed that beer is a liquor capable of producing intoxication."
The court also defined intoxicating liquor, and required the jury to find beyond a reasonable doubt that the liquor sold by appellant was capable of producing intoxication, and were instructed that "* * * if from all the facts and circumstances introduced in evidence in this case you have a reasonable doubt as to whether said liquor in question was intoxicating as that term has herein before been explained and defined in this charge you will give the defendant the benefit of such doubt and acquit him and say by your verdict 'not guilty'."
We think under the facts here present the Walker case is not controlling, and that the charge complained of was not erroneous.
A further examination of the facts leaves us of opinion that the jury had sufficient evidence before them to support the finding that the liquor sold was intoxicating.
The motion for rehearing is overruled.
Overruled.