Bell v. State

GRAVES, Judge.

Appellant was convicted of the possession of beer for the purpose of sale in a dry area, and fined the sum of $100.00.

He moves to quash the complaint and information because, as he alleges, the same is repugnant in that they charge him with the unlawful possession for the purpose of sale of “beer containing alcohol in excess of one-half of one per centum by volume, same being an intoxicating liquor,” etc.

The proof showed that appellant had nineteen cans of cold beer in his refrigerator and sixty cans of beer concealed in the ceiling of the hall at his house. The contention of appellant is based upon the fact that beer is defined by Art. 667-1, (b) P. C., as follows:

“The term ‘beer’ means a malt beverage containing one-half of one per cent or more of alcohol by volume and not more than four (4) per cent of alcohol by weight, and shall not be inclusive of any beverage designated by label or otherwise by any other name than beer.”

While “liquor” is defined by Art. 666-3a, P. C., as follows:

“ Liquor shall mean any alcoholic beverage containing alcohol in excess of four (4) per centum by weight, unless otherwise indicated.”

It is our opinion that the use of the words “same being an intoxicating liquor” did not mean to charge that such beer was “liquor,” as above set forth and defined by the statute. That such phrase was but a generic term, and could as well have read “same being an intoxicant;” or an intoxicating beverage, and would thus have conveyed the meaning intended by the pleader. Of course if such beer was not an intoxicant it would not have come under the denunciation of this statute, which is denominated the “Texas Liquor Control Act,” nor would same have been unlawful to possess. The word “liquor” does not in every instance used bear the restricted meaning set *392forth in the statute. If such were true, then the Liquor Control Board would be limited in its jurisdiction to beverages containing more than four per cent of alcohol by weight; and in many places in such Liquor Control Act where the word “liquor” or “intoxicating liquor” is used in conjunction with the regulation of the sale of “beer,” such would be restricted only to the heavier alcohol percentage of more than four per cent. To thus hold the phrase “intoxicating liquor” to this narrow meaning would leave unattended to many matters that the law-making body legislated upon in the realm of lesser percentages of alcohol than four per cent by volume.

We have long since held that this court will take judicial notice that “beer” is an intoxicating liquor. Judge Morrow said in the Torres case, 18 S. W. (2d) 179, 113 Tex. Cr. R. 1:

“The burden resting upon the state to prove that the liquid which the appellant was selling was capable of producing intoxication was discharged by the proof showing it to be beer, which, within the judicial knowledge of the court, is an intoxicating liquor. See Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 156, Ann. Cas. 1914C, 863, Eubank v. State, 104 Tex. Cr. R. 628, see page 632, 286 S. W. 234 and authorities cited.”

We do not think that the phrase complained of was used in its restricted sense, but only as descriptive of the intoxicating qualities of beer, which qualities were already judicially known to the court.

Appellant insists that the Pain case, 115 S. W. (2d) 638, is authority for the position herein taken by him relative to the repugnancy of the allegations in the complaint and information. We do not think so. The allegation in the Pain case was “that appellant in said county on July 19, 1937, possessed for the purpose of sale ‘intoxicating liquor, to-wit: 94 pints of untaxed liquor (Home Brew)’.” We have never held that we judicially know that “Home Brew” is an intoxicating liquor, but have consistently held that “the courts have no judicial knowledge that home brew is an intoxicating liquor.” See Minton v. State, 115 Tex. Cr. R. 301, 29 S. W. (2d) 765; Walker v. State, 51 S. W. (2d) 721; Bracken v. State, 111 Tex. Cr. R. 171, 12 S. W. (2d) 209; Jackson v. State, 109 Tex. Cr. R. 527, 5 S. W. (2d) 989.

*393In the Pain case, supra, the allegation was found that the accused sold intoxicating liquor, to-wit: Home Brew. In the instant case the allegation is that the accused sold beer. Home brew does not come under the statutory definition of beer, and the statute so says. It says that the term “ ‘Beer’ shall not be inclusive of any beverage designated by label or otherwise by any other name than beer.”

We think in the Pain case the accused was charged with the possession of liquor; in the present case he is charged with the possession of beer, and we see no conflict between this holding and the one found in the Pain case.

We have examined the bills of exception not herein written upon and are of the opinion that same fail to reflect error.

The judgment will therefore be affirmed.