Cantu v. State

• Decision Date: 11 February 1925
• Docket Number: (No. 8621.)
• Citation: 276 S.W. 432
• Parties: CANTU v. STATE.
• Court: Texas Court of Criminal Appeals

276 S.W. 432

CANTU v. STATE.

(No. 8621.)

Court of Criminal Appeals of Texas.

February 11, 1925.

On Appellant's Motion for Rehearing April 1, 1925.

On State's Motion for Rehearing October 7, 1925.

Appeal from District Court, Bee County; T. M. Cox, Judge.

Lino Cantu was convicted of transporting intoxicating liquors, and he appeals. Reformed and affirmed.

J. F. Murray, of Ponca City, Okl., for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for transportation of intoxicating liquor. Punishment is two years in the penitentiary.

There appears in the record what purports to be objections to the charge given by the court. There is nothing to show when, if at all, they were ever presented to the court. They bear no authentication whatever of the trial judge. In such condition they cannot be considered. Salter v. State, 78 Tex. Cr. R. 325, 180 S. W. 691; Castleberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216; Rhodes v. State, 93 Tex. Cr. R. 574, 248 S. W. 679.

The sheriff and two of his deputies stopped a car being driven by appellant's companion. Upon being asked by the sheriff what they had, appellant replied, "These are my belongings; I will show them to you right now," whereupon he pulled from the back seat of the car a loaded shotgun. The sheriff seized hold of the gun and in the scuffle over it he fell to the ground. One of the deputies fired at appellant several times with a pistol. Appellant escaped and was not arrested until two or three days later. In the car was found 124 quarts of tequila. The evidence is positive that it is intoxicating. In view of such proof we see no occasion for giving the special charges requested defining "intoxicating liquor" and advising the jury what was meant by spirituous, vinous, and malt liquor. Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090.

We observe in passing sentence upon appellant he was not given the benefit of the Indeterminate Sentence Law (Acts 1913, c. 132, amended by Acts 1913 [1st Called Sess.] c. 5), but was sentenced to the penitentiary for two years. The sentence is reformed to read that he will serve not less than one nor more than two years in the penitentiary, and as thus reformed the judgment is affirmed.

On Appellant's Motion for Rehearing.

No brief for appellant was on file when our opinion was written, and none was presented until upon motion for rehearing. The point upon which reliance is had to reverse the judgment escaped us. The indictment charged the transportation of "spirituous, vinous, and malt liquors capable of producing intoxication." It is admitted by appellant's attorney that the proof is sufficient to show that the liquor being transported was intoxicating; but the contention is that the state having in the indictment specifically described the liquor as "spirituous, vinous, and malt," was required to prove, not only that it was intoxicating, but that it was one of the particular kinds of liquor described, and that the state had failed to do this. Hendley v. State, 94 Tex. Cr. R. 40, 250 S. W. 174. The evidence only refers to the liquor as "tequila." One of the witnesses more than once called it "spiritual" liquor. Upon being asked what he meant by calling it "spiritual," he said he meant "it would make you drunk." There is no evidence as to what "tequila" is nor how it is made, whether distilled, brewed, or fermented, and unless in the absence of such evidence this court can have judicial knowledge that "tequila" is either a spirituous, vinous, or malt liquor, it appears that appellant's contention must be sustained.

"Judicial notice or knowledge may be defined as the cognizance of certain facts which judges and jurors may properly take and act upon without proof because they already know them. It is said that the term `judicial notice' means no more than that the court will bring to its aid and consider, without proof of the facts, its knowledge of those matters of public concern which are known by all well-informed people." 23 Corpus Juris, § 1807.

"Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Other common statements of the rule are that the courts will take notice of whatever is, or ought to be, generally known within the limits of their jurisdiction, and that they ought not to assume ignorance of, or exclude from their knowledge, matters which are known to all persons of intelligence." 23 Corpus Juris, § 1810.

We have failed to find any mention of "tequila" in our dictionaries, encyclopedias, or in the standard works on intoxicating liquors, such as Black, Joyce, or Wollen and Thornton, while the ordinary intoxicants known to us as whisky, beer, and wine are frequently mentioned and discussed. Neither are we advised that information of the source and method of manufacture of "tequila" is so generally known as that it may be said to form the common knowledge of persons of ordinary intelligence. From the name we might assume that "tequila" was a Mexican liquor, and we know from the evidence it is intoxicating, but, applying the rule as to judicial knowledge heretofore stated, we cannot assume to know what is its source, nor how it is made, and therefore cannot know whether it is a spirituous, vinous, or malt liquor.

It was not necessary to charge an offense under the statute for the state to allege that the liquor being transported by appellant was "spirituous, vinous, or malt." Other methods of description could have been resorted to under the broad terms of the law (section 1, c. 22, p. 53, Acts 2d Called Sess. 38th Leg.); but, having chosen to describe it as set out in the indictment, we must hold that the state was bound to sustain the description by proof that the liquor came within one of the kinds designated.

Having failed to do this, it follows that appellant's motion for rehearing must be granted, the order of affirmance set aside, and the judgment now be reversed, and the cause remanded.

On State's Motion for Rehearing.

MORROW, P. J.

Responding to the state's motion for rehearing, we have again reviewed the legal question presented, namely: Was the averment that the appellant did unlawfully transport spirituous, vinous, and malt liquors capable of producing intoxication, supported by the evidence? Appellant's connection with the transportation of a number of bottles of tequila is well supported. It was introduced in evidence before the jury and identified by a witness who said:

"As to what is contained in that bottle, well, sir, it's tequila, spiritual. Yes, sir; it is an intoxicating liquor. Yes, sir; I have tasted that liquor."

All the bottles identified and produced in the courtroom contained tequila. The witness was not a chemist. He said, however, that tequila is intoxicating. He also said:

"As to whether or not it was my intention on direct examination to testify that this liquor was spirituous, I testified that it was tequila; that I tasted it, and I said it was spiritual. As to how I know that it was spirituous, well, that's what it is called. Tequila is the Mexican name for it; it's a spiritual drink. Well, I don't know that I can tell this court and jury what is necessary to make that become spirituous liquor; I don't know whether I can answer that or not. As to whether or not I know that it is spirituous liquor, well, I have...