In this case appellant was prosecuted for violating the local option law, which had theretofore been adopted in justice precinct No. 4 in Caldwell County. He was convicted, and his punishment assessed at a fine of $50 and twenty days imprisonment in the county jail. He entered into a recognizance, and brings the case to this court for review.
Appellant filed a motion in arrest of judgment on the following grounds: (1) Because the affidavit upon which the information in this case is based, is insufficient in that it does not allege that the beer alleged to have been sold, was sold in justice precinct No. 4 of Caldwell County, Texas, the alleged prohibited territory. (2) Because there is a variance in and between the affidavit and the information, *Page 662 in that the affidavit does not allege where the alleged sale was made, whereas the information alleges that it was made in justice precinct No. 4, Caldwell County, Texas.
In the affidavit or complaint it is alleged that at an election held it was determined that the sale of intoxicating liquors should be prohibited in justice precinct No. 4, in Caldwell County, Texas, and the necessary orders made and publication had, "and thereafter, to wit, on the 16th day of September, 1910, one Juan Moreno did then and there sell intoxicating liquor" to Dock Duncan. The information follows the complaint except instead of using the words "then and there," says "thereafter in said justice precinct."
We think the words "then and there" in connection with the other allegations in the complaint have the same meaning as the words used in the information, and there was no variance, and the complaint and information both charge the offense to have been committed in the prohibitory territory. See 8 Words Phrases, p. 6946; Jeffries v. Commonwealth, 94 Mass. 145; Palmer v. People,138 Ill. 356; Kennedy v. Commonwealth, 6 Ky. 490, and other cases cited. The case of Smith v. State, 49 S.W. Rep., 373, and other cases cited do not support appellant's contention. In those cases there was no allegation as to the place, whereas in this complaint there is a specific allegation as to the time and place as construed by the authorities.
We can not consider that ground of the motion for a new trial complaining of the action of the court in overruling the motion for a continuance, as there is no such motion in the record, and no exception reserved to the action of the court in overruling the motion, if one was presented.
Neither can we consider the second ground of the motion complaining that the court erred in permitting the minutes of the Commissioners Court to be introduced in evidence. If such objection was made, no bill of exceptions appears in the record, and under our decisions, in the absence of a bill of exceptions, the matter will not be reviewed.
The beer was alleged to have been sold at a Mexican celebration held on the C.T. Shaw place. W.E. McDowell and Oscar Hoffman were permitted to testify that the C.T. Shaw place was a part of Thos. Maxwell league, and was within the territorial limits of justice precinct No. 4, at the time the prohibition election was held. The objections urged by appellant would only go to the weight of their testimony and not to its admissibility. It is true the metes and bounds of a justice precinct are matters of record, and are the best evidence of the bounds of the precinct. This record was introduced by the State. But the record would not disclose what surveys are within the bounds of the precinct, and this can be shown by oral testimony.
The Act of the Thirtieth Legislature, p. 447, regulate contests of local option elections, and after the time prescribed by this law *Page 663 has elapsed, the validity of the election, upon the introduction of the orders of the Commissioners Court, is presumed, and there was no error in the court instructing the jury that prohibition was in force in the territory described in the orders. Jerue v. State, 57 Tex.Crim. Rep.; Evans v. State, 55 Tex. Crim. 450; Ex parte Thulemeyer, 56 Tex.Crim. Rep..
The testimony of the State witnesses proved positively two separate and distinct purchases of beer from appellant, if believed. The appellant denied selling the beer, and claimed to have given it to the State witnesses. If the appellant desired that the word "sale" be defined, he should have requested instructions in regard thereto, and not having done so, he can not now complain, this being a misdemeanor. In a misdemeanor case, if the court fails to present any theory of a case desired by appellant, it is his duty to request such instructions and except to the failure of the court to give same, and if he does not do so, it will not present such error as to cause a reversal of the case. Ellis v. State, 57 Tex.Crim. Rep., 130 S.W. Rep., 170; Bradley v. State, 60 Tex.Crim. Rep., 136 S.W. Rep., 446, and cases cited in these opinions.
The witness Duncan, who testified he purchased beer from appellant, also testified he did so at the request of the officers, knowing that if he succeeded in purchasing same appellant would be prosecuted and convicted. He said he paid his own money for the beer, paying twenty-five cents for one bottle, and later purchased two bottles for which he paid forty cents. A portion of this beer he delivered to the officer requesting him to make the purchase. Appellant insists that this makes the witness Duncan an accomplice, and the court should have given the two special charges covering this theory of the case, requested by appellant. Article 407 of the Penal Code provides: "Where the sale of intoxicating liquors has been prohibited in any county, justice precinct, city or town, the fact that a person purchases it in violation of the provision of this chapter shall not constitute such person an accomplice." He was not employed to purchase the beer, but merely did so by request.
There was no evidence raising the issue that appellant was acting as agent of the witness Duncan in making the sale, consequently there was no error in refusing special charge No. 5 requested. Jones v. State, 60 Tex.Crim. Rep., 132 S.W. Rep., 476.
All the other special charges requested by appellant were given, except the two which presented the theory: "Inasmuch as the evidence failed to show that the beer sold was an intoxicating liquor appellant should be acquitted." There appears to have been no issue raised as to whether the beer was intoxicating or not in the trial of the case. The State's testimony showed a sale of beer by appellant to Duncan. The appellant's testimony showed a gift of the beer to Duncan. The price testified to by the State witness was twenty-five cents a bottle, or two for forty cents. A barrel of beer was shown to *Page 664 have been in a wagon on the celebration grounds about 9 o'clock at night. Appellant claimed he had purchased it for others, naming them. The witness testified he did not know the brand, that it was just ordinary beer. The court instructed the jury that if they believed beyond a reasonable doubt that appellant sold to Duncan intoxicating liquor, to wit, beer, to convict. The appellant requested instructions that as there was no evidence showing the beer to be an intoxicating drink to acquit. This presents the question: does a court judicially know that beer is an intoxicating liquor? This is a question of some difficulty, and our courts in the past have not been in accord on this question. In Aston v. State, 49 S.W. Rep., 385, this court held: "The proof shows that the prosecuting witness bought whisky of appellant, and it is a matter of common information that whisky is a spirituous liquor, distilled from corn and vegetables, and is highly intoxicating. It follows that the court did not err in charging the jury as to whether or not the defendant sold intoxicating liquor, because the courts take judicial knowledge of the fact that whisky is an intoxicating liquor." See also Douthitt v. State, 61 S.W. Rep., 404; Sebastian v. State, 39 S.W. Rep., 680; Wilcoxson v. State, 91 S.W. Rep., 581.
In Maier v. State, 2 Texas Civ. App. 300[2 Tex. Civ. App. 300], it is held: "It seems well settled that the word `beer' in its ordinary sense denotes a beverage which is intoxicating."
In Woollen and Thornton's "Law of Intoxicating Liquors" it is said: "Whether or not courts will take judicial notice that beer is an intoxicating or malt liquor has been one of much controversy of opinion, and this arises from the fact that there are many kinds of beer well known to be neither malt nor fermented nor intoxicating liquors. Therefore, upon a proof of a sale of `beer,' and nothing more, many cases hold that it is not shown that there was a sale of either malt or intoxicating liquor. But by the better line of cases on proof of a sale of `beer,' even without additional words, the courts will construe it as a sale of fermented, malted or intoxicating liquors, and the burden is upon the persons claiming it is not a malted, fermented or intoxicating liquor to show that fact. These decisions are based on the primary meaning of the word `beer.' `Webster,' said the Supreme Court of Indiana, `defines beer to be "a fermented liquor made from any malted grain, with hops and other bitter flavoring matter." In other words, it is a malt liquor, which the same author declared to be "a liquor prepared for drink by an infusion of malt, as beer, ale, porter," etc. It may, therefore, be said that beer is a liquor infused with malt and prepared by fermentation for use as a beverage. As a consequence when "beer" is called for at a place at which intoxicating drinks are sold, the bartender, having in view the primary meaning as well as the common use of the word, is justified in inferring and must reasonably infer that malted and fermented beer is wanted. If any other kind of beer is desired it is expected *Page 665 that qualifying words will be used, such as spruce beer, root beer, small beer, ginger beer, and the like, thus attaching a remote and secondary meaning to the word "beer" as descriptive of particular beverages. When, therefore, a witness testifies to the sale or giving away of beer under circumstances which make the sale or giving away of any intoxicating liquor unlawful, the prima facie inference is that the beer was of that malted and fermented quality declared by the statute to be an intoxicating liquor, and the court trying the case ought to take judicial notice of the inference which there arises from the use of the word "beer" in its primary and general sense.' So where the term `lager beer' is used in testimony the inference is that an intoxicating beer was meant. In days gone by, when the term `strong beer' was in use to distinguish it from small beer, courts took judicial notice that it was intoxicating." See also the following authorities: State v. Church, 6 S.D. 89,60 N.W. 143; Maier v. State, 2 Texas Civ. App. 296[2 Tex. Civ. App. 296], 21 S.W. Rep., 974; Briffitt v. State, 58 Wis. 39, 16 N.W. 39, 46 Am. St., 621; United States v. Descournau, 54 Fed. Rep., 138; Adler v. State,55 Ala. 16; Watson v. State, 55 Ala. 158; State v. Goyette,11 R.I. 592; People v. O'Reily, 129 N.Y. App. Div., 522, 114 N Y Supp., 258, affirmed (N.Y.) 88 N.E. 1128; Pedigo v. Commonwealth (Ky.), 24 Ky. L. Rep., 1029, 70 S.W. Rep., 659, affirming 68 S.W. 113; Sothman v. State, 66 Neb., 302, 92 N.W. Rep., 303; Coe v. State (Okla.), 104 Pac. Rep., 1074; Peterson v. State, 80 N.W. Rep., 549; Markison v. State (Okla.), 101 Pac. Rep., 353; Kerkow v. Bauer, 15 Neb., 155, 18 N.W. Rep., 27; State v. Mitchell, 134 Mo. App., 540, 114 S.W. Rep., 1113; Lambie v. State, 151 Ala. 86, 44 So. 51; State v. Carmody, 50 Ore., 1, 91 P. 446, 1081; Hoagland v. Canfield, 160 Fed., 146; Locke v. Commonwealth (Ky.), 25 Ky. L. Rep., 76, 74 S.W. Rep., 654; Commonwealth v. Hurst (Ky.), 23 Ky. L. Rep., 365, 62 S.W. Rep., 1024; Peterson v. State, 63 Neb., 251, 88 N.W. Rep., 549; Killip v. McKay, 13 N.Y. St. Rep., 5; People v. Wheelock, 3 Park (N.Y.), 9; Murphy v. Montclair, 39 N.J.L. 673; State v. Lemp, 16 Mo., 389; State v. Houts, 36 Mo., 265; State v. Teissedre, 30 Kan. 477,2 P. 650; Douglass v. State, 21 Ind. App. 302, 52 N.E. Rep., 238; State v. Jenkins, 32 Kan. 480, 4 P. 809; Myers v. State, 93 Ind. 251. (This case overrules the prior Indiana cases on this point.) Stout v. State, 96 Ind. 407; Welsh v. State, 126 Ind. 71, 25 N.E. 883; Dant v. State,106 Ind. 79, 5 N.E. 870; Welsh v. State, 126 Ind. 71, 25 N.E. 883; Briffitt v. State, 58 Wis. 39, 16 N.W. Rep., 39; State v. Goyette, 11 R.I. 592; State v. Rush, 13 R.I. 198; Walker v. State, 38 Ark. 656.
In the American English Ency. of Law, p. 200, it is said: "According to some decisions lager beer falls within the term `intoxicating liquors'" if the use of it is ordinarily or commonly attended with entire or partial intoxication, and whether such is a fact is to be decided by the jury upon the evidence in the case. But these decisions are not *Page 666 in accord with the weight of authority, which is to the effect that the court will take judicial notice that lager beer is malt liquor and that it is intoxicating. In a number of decisions it is held that the courts can not take judicial notice that beer is an intoxicating liquor, and that in the absence of evidence as to its quality and effect, it does not import intoxicating liquor. These decisions proceed upon the theory that the term `beer' includes both intoxicating and nonintoxicating liquors, and can not be said, in its ordinary meaning, necessarily to imply an intoxicating drink. On the other hand, the doctrine maintained by the weight of authority is that the word `beer' without qualification, in its ordinary acceptation imports a malt and intoxicating liquor, and that the court will take judicial knowledge of that fact; and if on a prosecution for selling beer the defendant is shown to have made the sale charged, it is competent for him to show that the beer was not intoxicating, but if he relies on this as a defense, the burden is on him to show it. In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor." On pages 200 and 201, vol. 17, of the second edition of this work, will be found cited many authorities sustaining the text as thus laid down.
In the Encyclopedia of Evidence, p. 675, vol. 7, it is said: "The authorities are practically unanimous on the proposition that lager beer is judicially known to be an intoxicating malt liquor. Some cases, however, take the opposite view. So where the evidence discloses a sale of beer, without any qualifying or descriptive words, it will be presumed to be intoxicating," citing United States v. DuCournau, 54 Fed. Rep., 138; Georgia — Snider v. State, 81 Ga. 755; Indiana — Welsh v. State,126 Ind. 71; Kansas — State v. May, 52 Kan. 53; Kentucky — Locke v. Com., 25 Ky. L. Rep., 76; Minnesota — State v. Tisdale,54 Minn. 105; Missouri — State v. Lemp, 16 Mo., 389; Nebraska — Sothman v. State, 66 Neb., 302; New Jersey — Murphy v. Montclair, 39 N.J.L. 673; New York — Blatz v. Rohrback,116 N.Y. 450; Ohio — Markle v. Town of Akron, 14 Ohio St. 586; Wisconsin — Briffitt v. State, 58 Wis. 39; Alabama — Watson v. State, 55 Ala. 159; Arkansas — Waller v. State, 38 Ark. 656; Florida — Netso v. State, 24 Fla. 363; North Carolina — State v. Giersch, 98 N.C. 720; Rhode Island — State v. Goyette,11 R.I. 592; South Dakota — State v. Church, 6 S.D. 89; Vermont — State v. Kibling, 63 Vt. 636.
In this State where any county or precinct adopts local option, the dealer who merely has a beer license, judicially knows that its sale is prohibited, closes his doors, and asks for a refund of his license. The Commissioners Court without proof knows beer is intoxicating and prohibited, and refunds the county license fee. The comptroller judicially knows that it is intoxicating and refunds the State occupation tax. In fact, all officers who are entrusted with any duty in the premises take official cognizance that "beer" is an intoxicant, and act in accordance therewith without any evidence, and the law writers all declare that courts may properly and will take judicial knowledge of *Page 667 facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Whatever may have been the rule in this State formerly, since the Act of the Thirty-First Legislature (page 293) defining intoxicating liquors, it can not longer be a question but what the courts will take judicial knowledge that beer is an intoxicating liquor.
Inasmuch as there was no issue in the evidence in the trial court, raising the issue that the article sold, to wit, beer, was not an intoxicating liquor, but the whole case was tried on the theory that it was intoxicating and prohibited, there was no error in the charge of the court, or in the refusal to give the special charges requested.
The errors assigned in the brief, which do not appear in the motion for a new trial, are not considered.
The judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, absent.
ON REHEARING. January 24, 1912.