This case was dismissed at a former day of this term because of the fact that no sufficient cognizance or appeal bond appeared in the record. This defect has been removed, a sufficient bond has been filed and the case wlil now be considered on its merits.
The State saw fit to charge in its indictment that appellant was in possession of "spirituous, vinous and malt liquors capable of producing intoxication." To prove this allegation the State introduced testimony sufficient to show appellant in possession of certain bottles of tequila; and that tequila is intoxicating. We have carefully searched the record to see if there be any testimony that tequila is either a spirituous, vinous or malt liquor, and find not a word. The State of Texas maintains at its capital city a State chemist whose duties require him to analyze at no cost to prosecuting officers, liquors and matters of that kind sent to him for analysis. If tequila be either spirituous, vinous or malt liquor, this fact should be shown by testimony. Can it be said that proof of the fact that tequila is intoxicating meets the universal requirement in every case, viz: that the allegation in the indictment and the proof correspond. If there were no other intoxicating liquors save such as are spirituous, vinous or malt, then proof of the fact that the liquor was intoxicating would meet the allegations above mentioned. In Allred v. State,89 Ala. 112, it is held that liquor may be highly intoxicating and yet not spirituous. In Commonwealth v. Herrick,60 Mass. 465, and Commonwealth v. Gray, 68 Mass. 501, it is said that the word "intoxicating" is a broader word and includes a larger class of cases than "spirituous" and that although spirituous liquors are intoxicating, all intoxicating liquors are not spirituous. It is manifest that spirituous, vinous and malt liquors refer to different kinds of liquor, and whether these three descriptives comprehend all kinds and classes of intoxicating liquor, *Page 369 is a matter of which this court has no knowledge, and is a matter not established by any proof in the case under consideration.
If the indictment in the instant case had merely charged appellant with the possession of liquor capable of producing intoxication, there would have been no variance between the proof and the allegations, but when the pleader specifically states in the indictment that the liquor found in possession of the appellant is spirituous, vinous and malt liquor, other proof is necessary to meet these allegations beside the statement of witnesses that the liquor found in appellant's possession was intoxicating.
Because of the failure of the State to meet by proof its allegations in the indictment, the judgment must be reversed and the cause remanded.
Reversed and Remanded.