The conviction is for the maintenance of a common nuisance; the punishment, a fine of $50.00.
The prosecution arose and was properly maintained under Art. 666-42, Vernon’s Annotated Penal Code, inasmuch as the alcoholic beverage involved contained less than four per centum of alcohol by weight.
*161The trial court, in his charge, failed to require an affirmative finding of the existence of the elements essentially necessary to constitute the offense charged, in order for the jury to convict appellant. A special charge embodying such elements was requested and refused. The same question was before this court in Walker v. State, No. 21,847, decided January 14, 1942, (page 155 of this volume) and was there held to be error, requiring a reversal of the case.
The judgment of the trial court is reversed and the cause remanded.
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.