ON MOTION FOR REHEARING.
BEAUCHAMP, Judge.In her motion for rehearing appellant insists that the evidence was insufficient to warrant a conviction because it does not show that the beer involved was intoxicating. On the other hand, the witnesses who drank a part of it said that they did not become intoxicated.
Appellant presents that under the rule laid down in Holman v. State, 14 S. W. (2d) 849, the proof is insufficient because it does not affirmatively show the beverage to be intoxieating. It is apparent that appellant overlooks the definition of “beer” as contained in the present statute. Furthermore, the case is distinguishable from .the Holman case in that there was an issue raised as to whether or not it was “beer” or “home brew.” Defendant testified in that case that the liquid in question was not beer; that it was not intoxicating, and that it was home brew in the making which had not reached the stage at which it could be served for drinking, but had only “started.” An issue was squarely raised in that case and this court properly held that it should be submitted to the jury. No such issue appears in the case at bar.
We adhere to the original opinion. The motion for rehearing is overruled.