The offense is selling wine in a dry area; the punishment, a fine of $100.00.
An inspector of the Texas Liquor Control Board testified that on the 28th day of September, 1939, he bought a quart of wine from appellant. The testimony of appellant's witnesses raised the issue of alibi.
Appellant contends that the State failed to introduce all of the orders necessary to show the dry status of Hall County. Appellant has failed to specify the absence of any essential order from the record. Our examination of the statement of facts leads us to the conclusion that all essential orders were introduced in evidence.
It was shown that after prohibition had been adopted in Hall County subsequent elections had been held, but that such elections failed to change the dry status of the county. This testimony was given orally by the custodian of the records without *Page 61 producing the records relating to such subsequent elections. Appellant objected to the testimony on the ground that the records constituted the best evidence. Under the holding of this court in George Evans v. State. Opinion No. 21,205, delivered November 20, 1940, (140 Tex.Crim. Rep.) it was not incumbent upon the State to prove that the dry status of the county had not been changed by subsequent elections, notwithstanding it was averred in the indictment that such change had not occurred. In short, the court held that the averment mentioned was surplusage.
Article 666-3a of the Texas Liquor Control Act provides:
" 'Liquor' shall mean any alcoholic beverage containing alcohol in excess of four (4) per centum by weight, unless otherwise indicated. Proof that an alcoholic beverage is alcohol, spirits of wine, whisky, liquor, wine, brandy, gin, tequila, mescal, habanero, or barreteago, shall be prima facie evidence that the same is liquor as herein defined."
The court instructed the jury, over appellant's proper objection, as follows:
"You are hereby instructed that wine is a liquor containing alcohol in excess of one-half of one per centum by volume."
It is appellant's contention that the court should have given his requested instruction defining prima facie evidence. If such an instruction would have been proper — and this is not conceded — we are unable to perceive how either the charge the court gave, or the failure to give appellant's requested instruction, could have injured appellant. We say this in view of the fact that subdivision (b) of Article 666-4 of the Texas Liquor Control Act reads as follows:
"It shall be unlawful for any person in any dry area to manufacture, distill, brew, sell, possess for the purpose of sale, import into this State, export from the State, transport, distribute, warehouse, store, solicit or take orders for, or for the purpose of sale to bottle, rectify, blend, treat, fortify, mix, or process any liquor, distilled spirits, whiskey, gin, brandy, wine, rum, beer or ale."
It is observed from the foregoing quotation that the sale of wine in a dry area is inhibited. This court takes judicial notice that wine is an intoxicating liquor. Terry v. State,128 S.W.2d 1202. We do not understand that the provisions of the statute heretofore quoted to the effect that proof that an alcoholic *Page 62 beverage is wine is prima facie evidence that it is liquor as defined in the statute should cause this court to reverse its former holdings that we take judicial notice that wine is an intoxicating liquor. The complaint charged that the wine appellant is alleged to have sold was an intoxicating liquor and contained alcohol in excess of one-half of one per centum by volume. Being intoxicating, it would seem to follow that its alcoholic content was more than one-half of one per centum by volume. Under the circumstances, if error was committed by the court with reference to the charge in question, we think such error was harmless.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.