As we understand appellant's motion for rehearing he is insisting that Art. 222 Cow. C. P. which permits an affiant to predicate a complaint on the statement that he "has good reason to believe and does believe," etc., is violative of Art. 1, Sec. 5 of the State Constitution, which reads: "No person shall be disqualified to give evidence in any of the courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury."
Appellant bases his contention on the proposition that a person can not be prosecuted for perjury for making a false and untrue statement on information and belief.
First, we think appellant misconstrues or misapplies Sec. 5, Art. 1 of the Constitution. It has reference to administering oaths to a witness who proposes to give evidence in court. He *Page 235 shall not be denied that right because of his religious belief or because he has none. The oath administered to him should be the one most binding on his conscience, and whatever be the character of the oath so administered it will subject the witness to the penalty of perjury if he gives false testimony. In Campbell v. State, 43 Tex.Crim. Rep., the same contention was made as is here presented. In construing Sec. 5, Art. 1, Judge Davidson said: "A casual inspection of this section shows that it applies to witnesses while giving evidence."
Second, we are not inclined to commit ourselves to the correctness of appellant's proposition that an affiant could not be prosecuted for perjury who in a complaint for the basis of a prosecution swears that he "has good reason to believe and does believe" that the accused committed the offense charged in said complaint. While not holding directly that perjury could be assigned upon such a complaint it is strongly intimated that by proper pleading it could be done in Powitsky v. State,134 Tex. Crim. 613, 117 S.W.2d 72. There accused had made a complaint that he "had good reason to believe and did believe" that one Patterson had committed the crime of theft. The grand jury returned an indictment against Powitzky alleging that he committed perjury when he swore to said complaint, but failed in the indictment to deal with the fact that in the complaint accused had sworn that he had good reason to believe and did believe that Patterson had committed the offense of theft. When the complaint was offered in evidence objection was interposed that a variance existed between it and the averments in the indictment. It was said in the course of the opinion: "If the complaint had been correctly set forth in the indictment, it would have been necessary for the pleader to have averred either that appellant did not believe what he swore, or that he believed and well knew that the statements made by him under oath were false."
Supporting the statement there were cited 48 Corp. Juris, Sec. 134, p. 884, and State v. Coyne, 214 Mo. 344, 114 S.W. 8, 21 L. R. A. (N. S.) 993. In addition, we refer to 21 Ruling Case Law, Sec. 14, p. 268. If a party makes oath that he has "good reason to believe and does believe" that a person has committed a certain offense it might be difficult to prove that he did not believe it, or that he had no good reason to so believe, and yet such averments are not impossible of proof. It is frequently difficult to prove many averments necessary to charge some offenses, but the difficulty of proof does not dispense with the necessity of the averments.
The State's pleading charged that in Justice Precinct No. 3 *Page 236 — alleged to be dry territory — of Dallas County, appellant sold "an alcoholic beverage containing alcohol in excess of one-half of 1 per cent by volume, to-wit: beer." The evidence shows that the beer sold was Grand Prize beer and that it contained 4.6 per cent alcohol by volume. Appellant contends that before he could be convicted for selling beer in a dry area the evidence must show that the beer sold contained 4 per cent of alcohol by weight, and that there is no evidence to that effect in the present record. Our present statute specifically makes it an offense to sell "beer" — naming it among other liquors — in dry area. Art. 666-4, Sec. (b), Vernon's Texas P. C., Vol. 1, Acts 1937, 45th Leg., p. 1053, ch. 448. Under the present law it was sufficient to describe the liquor sold as "beer" only. The pleader here amplified the description in saying it was an alcoholic beverage containing in excess of one-half of 1 per cent of alcohol by volume. The proof showed the volume to be over that alleged. Art. 666-3a of the Liquor Control Act heretofore referred to defines "Alcoholic Beverage" as "any beverage containing more than one-half of 1 per cent of alcohol by volume which is capable of use for beverage purposes, either alone or when diluted." We fail to discover wherein the facts proven fall short of making a case under the present law.
We note the following expression in appellant's motion for rehearing. "This court has never up to this writing taken judicial knowledge that beer is intoxicating." Apparently appellant has overlooked a long line of decisions expressly holding that we would take such judicial knowledge. See Tyson v. State, 116 Tex.Crim. R., 32 S.W.2d 458, and cases there cited; Loftus v. State, 118 Tex.Crim. R., 37 S.W.2d 158; Knudson v. State, 120 Tex.Crim. R.,47 S.W.2d 620; Texas Digest, Vol. 11, Cr. Law, Key No. 304 (20).
We have discussed all questions presented in appellant's motion and find nothing which leads us to believe our original disposition of the case was erroneous.
The motion for rehearing is overruled.