Full opinion text
MORROW, P. J. Possession of potable liquor containing in excess of 1 per cent, of alcohol by volume is the- offense; penalty assessed at confinemeht in the penitentiary for one year and six months. The residence of the appellant was searched, and a quantity of home-brew beer was found by the officers. Contending that the search warrant was invalid, the testimony of the officers showing the result of the search was opposed, by the appellant. It appears from the bill of exceptions that, when the search warrant was issued and delivered to the sheriff, it was incomplete, and was altered by the insertion therein of the initials of the appellant. The affidavit was likewise changed. The alteration was with the verbal consent of the magistrate who issued the warrant. The warrant was invalid. See Cornelius on Search and Seizure, p. 394, § 165; Sherow v. State, 105 Tex. Cr. R. 650, 290 S. W. 754. The testimony of the officers touching the result of the search was inadmissible and improperly received. Article 727a, Code Cr. Proc. 1925; Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095. Excluding the testimony of the result of the search, there is apparently an absence of evidence touching the contents of the liquid which was possessed by the appellant. There is testimony that a chemist examined two bottles of liquid which he received by mail; that it contained in excess of 1 per cent, of alcohol by volume, but the identity of the liquid which the chemist examined with that possessed by the appellant is not in the record, save through the evidence of the sheriff revealing the result of the illegal search. There was other testimony to the effect that the appellant had sold on two or three occasions what was described as “home-brew.” There was produced before the jury two or three bottles of liquid which was admitted to have come from the appellant’s premises, but as to the contents of these bottles there is found no testimony in the record. This court is without judicial knowledge of the alcoholic contents of home-brew. See Bracken v. State, 111 Tex. Cr. R. 171, 12 S.W. (2d) 269; Coleman v. State (Tex. Cr. App.) 18 S.W.(2d) 162; Eubank v. State, 104 Tex. Cr. R. 628, 286 S. W. 234. The judgment is reversed, and the cau§e remanded.