Henson v. State

• Decision Date: 13 January 1926
• Docket Number: (No. 9636.)
• Citation: 280 S.W. 592
• Parties: HENSON et al. v. STATE.
• Court: Texas Court of Criminal Appeals

280 S.W. 592

HENSON et al. v. STATE.

(No. 9636.)

Court of Criminal Appeals of Texas.

January 13, 1926.

Rehearing Denied February 17, 1926.

Commissioners' Decision.

Appeal from District Court, Archer County; H. R. Wilson, Judge.

W. S. Henson and W. H. Pettigrew were convicted of unlawfully possessing for purpose of sale spirituous, vinous, and malt liquors, etc., and they appeal. Reversed and remanded.

T. J. McMahon, of Wichita Falls, for appellants.

Jas. V. Allred, of Wichita Falls, Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BAKER, J.

The appellants were convicted in the district court of Archer county and their punishment assessed at five years each in the penitentiary.

The record discloses that the appellants were charged by indictment and convicted under the first count thereof, which alleged that they "did then and there unlawfully possess, for the purpose of sale, spirituous, vinous, and malt liquors containing in excess of 1 per cent. of alcohol by volume, etc." This was the only count submitted by the court to the jury, and the one upon which the conviction was based. There are several questions raised on this appeal, but, as the record is presented, there is only one question which we deem necessary to consider, and that is the sufficiency of the evidence to sustain the conviction. It will be observed from the above allegations in the indictment that appellants were charged with the unlawful possession for the purpose of sale of "spirituous, vinous and malt liquors."

The testimony upon the part of the state shows that appellants were arrested at a tent where there were a couple of barrels of water and many bottles full of what was denominated by the witnesses as "choc beer." There is not a line of testimony showing how or from what choc beer is made, and in fact nothing to support the allegations of the indictment to the effect that it was spirituous, vinous, or malt liquors. Without proof by the state showing that choc beer was spirituous, vinous, or malt liquors to sustain the allegations in the indictment, there is but one thing for this court to do, and that is to hold that the evidence is insufficient to warrant the conviction. This court, in the case of Chaves v. State, 275 S. W. 1006, under a similar indictment, where the evidence showed that the appellant was in possession of tequila, and the state failed to prove that tequila was spirituous, vinous, and malt liquor, held that the evidence was insufficient to sustain the allegations of the indictment. Under the Chaves Case, supra, and the authorities therein cited, we are forced to the conclusion that the evidence is wholly insufficient to warrant the conviction, and the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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.

On Motion for Rehearing.

MORROW, P. J.

Counsel for the state have filed a motion for rehearing, in which it is contended that, while there is no specific proof that "choc beer" was an intoxicating liquor, its designation as "beer," together with the proof that it contained about 5 per cent. of alcohol at the time it was examined, and probably contained about 2 per cent. of alcohol at the time it was manufactured, would characterize it as an intoxicating liquor. While there is some conflict in the decisions of this state upon the subject, the great weight of judicial declaration is to the effect that, under an indictment charging the possession of intoxicating liquor, proof that the liquid was beer meets the legal...