George Torbett, the purchaser named in the indictment, testified that desiring something to drink, he went to the appellant's home, knocked at the door, "got seven bottles of beer and gave two dollars for it." The witness said that he and his companions drank four bottles of beer and decided that they wanted more of it. The witness returned to the appellant's house. The appellant got up and turned on the light and "I got eleven more bottles and gave him three dollars for them." The witness further said that while in possession of the eleven bottles, they were taken by officers.
The contents of some of the eleven bottles mentioned was analyzed and found to contain an excess of 5 per cent of alcohol. It occurs to us that this testimony warranted the jury in concluding that the appellant sold to Torbett a beverage called "beer." The courts have judicial knowledge that "beer" is a malt liquor. See Webster's New International Dictionary, p. 202; Moreno v. State, 143 S.W. 156, 64 Tex.Crim. Rep.; Words Phrases, Vol. 1, 2nd Series, p. 417; Amer. Eng. Ann. Cas., 1914c, p. 863; Black on Intoxicating Liquors, Sec. 17, p. 18; Henson et al. v. State, 260 S.W. 592. The courts have no judicial knowledge of the contents or character of "choc beer" or "tequila." See Briggs. v. State, 280 S.W. 775; Henson et al. v. State, supra; Chaves v. State, 275 S.W. 1006.
The cases of Revilla v. State, 280 S.W. 1004, and Tolar v. State, 260 S.W. 1045, are not in conflict with the conclusion reached on the original hearing.
The fact that the evidence is sufficient to show that the appellant sold to the purchaser named in the indictment a beverage known as "beer" is sufficient, under the precedents *Page 633 named, to characterize the liquid as malt liquor. The evidence also disclosed that the liquor contained more than 1 per cent of alcohol by volume and was usable for beverage purposes. By this means the state met the measure of proof demanded by the law in charging the offense under Art. 667, P. C. 1925, so far as pertains to the character of the liquor is concerned. The other evidence is' sufficient to connect the appellant with the sale.
The evidence adduced upon the motion for new trial has been carefully read. Such parts of it as tend to support the appellant's theory that there was misconduct of the jury in alluding to the appellant's failure to testify and to his previous trial is conflicting to a degree that rendered the decision of the trial court against the accused on the hearing of the motion binding upon this court. See Shaw v. State,32 Tex. Crim. 155; Adams v. State 48 Tex.Crim. Rep., and numerous other cases collated by Mr. Branch in his Ann. Tex. P. C., Sec. 574, p. 295, to the point that the decision of the trial judge upon conflicting evidence given in the motion for new trial is, on appeal, to be given the same weight as the verdict of the jury upon any other question of fact, and if the evidence is sufficient to support the court's decision, it is not to be disturbed on appeal unless clearly wrong.
The permission to file a second motion for rehearing is denied.
Motion denied.