In his motion for rehearing appellant seriously contends that we erred in our original opinion in holding that the State offered in evidence the orders of the Commissioners' Court of Hall County showing that local option was in force and effect in said county at the time of the commission of the alleged offense. He contends that our holding is tantamount to saying that to offer in evidence the orders is equal to their introduction in evidence, which is contrary to the decision of this court in Lester v. State, 153 S.W. 861; Graham v. State,139 S.W.2d 269, and McChristy v. State, decided December 18, 1940, but not yet reported (140 Tex.Crim. Rep.). We are not unmindful of the holding of this court in the cases mentioned, but in the case under consideration the County Attorney called the deputy county clerk, who produced the minutes of the Commissioners' Court and identified the same. He then introduced the orders of said court ordering an election for the purpose of determining whether or not the sale of intoxicating liquor within and for Hall County should be prohibited, the notice of the time and place for holding said election, the order declaring the result of said election to be in favor of prohibiting the sale of intoxicating liquor, the proclamation of the county judge, together with the publication thereof, all of which appears in the statement of facts. It might have been better had we said that the orders were introduced instead of having said that they were *Page 63 offered in evidence. They were actually introduced in evidence as disclosed by the statement of facts, of which appellant no doubt had full knowledge because his attorney agreed to the statement of facts and signed the same. We therefore overrule his contention.
Appellant next complains that we erred in declining to sustain his contention that the trial court committed reversible error in declining to give his special requested instruction to the effect that "liquor shall mean any alcoholic beverage containing alcohol in excess of four per centum by weight." He claims that it was charged in the information that he sold "liquor" and therefore our holding in the instant case is in conflict with our decision in the cases of Pain v. State,115 S.W.2d 638, and Terry v. State, 128 S.W.2d 1202. We have examined the authorities cited by appellant but find ourselves unable to agree with him that our holding in the instant case is in conflict with the decisions in those cases. In the present instance, it was charged that appellant sold to E. S. Crider "wine, same being an alcoholic beverage containing more than one-half of one per cent of alcohol by volume." Article 666-4, P. C., makes it unlawful for any person in any dry area to * * * sell * * * wine, etc. This court has heretofore said in the case of Terry v. State, supra, that we will take judicial notice of the fact that wine is an intoxicating liquor containing alcohol in excess of one-half of one per cent by volume. Consequently, the State was not required to prove that the wine contained alcohol in excess of four per cent by weight. We do not believe it would serve any useful purpose to again enter upon a lengthy discussion of the question. We therefore overrule the same.
All other matters urged in the motion for rehearing have had our most careful consideration and are deemed to be without merit.
The motion for rehearing is overruled.
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. *Page 64