Full opinion text
CHRISTIAN, J. The offense is possession for the purpose of sale of spirituous, vinous, and malt liquors containing in' excess of one per cent, of alcohol by volume; the punishment confinement in the penitentiary for one year. The indictment contains the following: “ * * * Possessed for the purpose of sale spirituous, vinous and malt liquors containing in excess of one per cent, of alcohol by volume.” The offense charged is defined by article 667, P. O., which denounces the possession for the purpose of sale of spirituous, vinous, or malt liquors or medicated bitters containing in excess of one per cent, of alcohol by volume, as well as the possession for the purpose of sale of any potable liquor, mixture, or preparation containing in excess of one per cent, of alcohol by volume. Two phases of the offense are embraced by the article in question. The present indictment charges only one phase; namely, the possession for the purpose of sale of spirituous, vinous, and malt liquors containing in excess of one per cent, of alcohol by volume. It was incumbent on the state to prove that the liquor was a spirituous, vinous, or malt liquor. Officers found on the premises of appellant a quantity of what “was denominated “home brew.” Each of the officers described the liquid as home brew, while in some parts of the record it was casually referred to as beer. The entire record makes it manifest that said liquid was “home brew.” Appellant, in admitting the possession of the liquor referred to it as home brew. The chemist who analyzed one bottle of the liquid referred to it as beer. However, his testimony negatives the idea that the liquid contained malt. He said.: “The white stuff there in the bottle is the residue after extracting the alcohol. The other there is alcohol. No, that is not all alcohol; it is 53¾00% alcohol and the rest of it is water.” Proof that the liquid was “beer” would have supported the averment that it was malt liquor. Williams v. State, 106 Tex. Cr. R. 419, 292 S. W. 898. In Williams', supra, Judge Morrow states the rule as follows : “If the indictment had charged that the appellant transported a ‘potable-’ liquor containing in excess one per cent, of alcohol by volume, then the proof would h.ave been sufficient to support the verdict, although the liquor was not a spirituous, vinous, or malt liquor nor an intoxicating liquor. In the absence of an averment that the liquor transported was potable— that is, drinkable; usable as a beverage — and In the absence of proof that it was a spirituous, vinous, or malt liquor, the conviction cannot be sustained, for the reason that the proof does not correspond with the averment.” See Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 914; Huddleston v. State, 103 Tex. Cr. R. 108, 280 S. W. 218; Henson v. State, 103 Tex. Cr. R. 123, 280 S. W. 593; Chaves v. State, 101 Tex. Cr. R. 367, 275 S. W. 1006. We think the evidence fails to show that the liquid possessed by appellant was spirituous, vinous, or malt liquor. Because the proof does not .correspond with the averment contained in the indictment, the judgment is reversed, and the cause remanded. PER CURIAM. 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. <§=oFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes