Lino Cantu v. StateLino Cantu v. State
- Reporters:
- , ,
- Before:
- Hawkins
Appeal from a conviction for transporting intoxicating liquor; penalty, two years in the penitentiary.
The opinion states the case.
J. F. Murray, for appellant.
Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attоrney, for the State.
HAWKINS, Judge. 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 аt 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. Crim. Rep. 325, 180 S. W. 691; Castleberry v. State, 88 Tex. Crim. Rep. 502, 228 S. W. 216, Rhodes v. State, 93 Tex. Crim. Rep. 574, 248 S. W. 679.
The sheriff and two of his deputies stopped a car being driven by appellant’s сompanion. 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 one hundred and twenty-four quarts of tequila. The еvidence 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. Crim. Rep. 505, 251 S. W. 1090.
We observe in passing sentence uрon appellant he was not given the benefit of the “Indeterminate Sentence” law 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.
Affirmed.
HAWKINS, Judge. 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
“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 ‘judiсial 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.” Corpus Juris, § 1807, Vol. 23.
“Courts may properly tаke 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.” Corpus Juris, § 1810, Vol. 23.
We have failed to find any mention оf “tequila” in our dictionaries, encyclopedias, or in the standard works on Intoxicating Liquors, such as Black, Joyce or Woollen and Thornton, while the ordinary intoxicants known to us as whiskey, 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
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 resortеd to under the broad terms of the law (
Having failed to do this it follows that appеllant’s motion for rehearing must be granted, the order of affirmance set aside, and the judgment now be reversed and remanded.
Reversed and remanded.
ON STATE’S MOTION FOR REHEARING.
MORROW, Presiding Judge. 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 court room 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 sрiritual. 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 always been taught that it was, but I couldn’t say whether it is or not. No, sir, I do not know whether it is spirituous or not; I’ve always been taught that it was, and that’s the reason I called it spiritual, because that’s what I’ve known it to be all the timе. * * * I have never seen any tequila manufactured. I do not know of my own knowledge whether it is spirituous or not.”
“What is meant on my direct examination by saying that this liquor was spiritual was that it was intoxicating; that’s what I meant
by it. No, sir, I don’t know whether or not tequila is a wine. Yes, sir, I knоw what wine is. Well, yes, tequila might be a wine of some grade, I don’t know, I couldn’t answer that. As to whether or not I think that tequila might be a wine, it might be, I couldn’t tell you. Whatever tequila is, whether spirituous, malt, vinous, or any other kind of liquor, you bet your boots it is intoxicating.”
In Webster’s New Intеrnational Dictionary, p. 2129, in the footnotes, we find the word “tequila” and in brackets, “From the Tequila district, Mexico.” “The drink mescal.” On page 1355 of the same book we find “mescal” defined thus:
“A colorless intoxicating drink distilled in Mexico from the leaves of vаrious species of Agave, or maguey.”
From the Hendley case, 94 Tex. Crim. Rep. 40, referred to in the motion for rehearing, reference is made to Black on Intoxicating Liquor, where the term “spirituous liquor” is used with this comment:
“Examination of previous sections of the same chaptеr shows that ‘spirituous liquor’ is that made by the process of distillation.”
As viewed by the writer, it is not necessary to the decision of this case to make an authoritative declaration as to whether, as a matter of judicial knowledge, tequila is a spirituous liquor.
The evidence in the present case, in the opinion of the writer, is sufficient to support the finding that tequila was a spirituous liquor. Its intoxicating quality was not disputed, but on the contrary, was categorically admitted. The witness who was interrogated upon the subject was not an expert but from his knowledge of intoxicating liquor and from having tasted that in question, he gave evidence that it was spirituous liquor. In some of his testimony he called it “spiritual.” He was a peace officer and not skilled in language or chemistry, but had long known of tequila as a spirituous liquor. It is true that on cross-examination he declared that by the use of the word “spiritual“, as applied to tequila, he meant that it was intoxicating. His cross-examination, we think, was not to be takеn as nullifying his entire testimony or his language as detailed before the jury. To the mind of the writer, the point is analogous to cases of homicide in which the familiar practice applied to the testimony of the accused is that although on crоss-examination he is led to tie himself to a given theory of defense, other theories arising from his testimony or from that of other witnesses are not excluded. Numerous applications of this rule are found in cases in which the accused has testified that his sole reason for slaying his antagonist was the fear of death. Upon appeal it has been held that, notwithstanding such testimony, the issue of manslaughter arose from his evidence. Instances are Steen v. State, 88 Tex. Crim. Rep. 257; Ward v. State, 96 Tex. Crim. Rep. 278; Lewis v. State, 265 S. W. Rep. 709.
Affirmed.
CONCURRING OPINION.
LATTIMORE, Judge. In addition to what is said in our opinion in chief on the State’s motion for rehearing, we again call еarnest attention of State’s attorneys to the fact that in describing liquor in prosecutions for violations of the law relative thereto, it is sufficient to say it is “liquor capable of producing intoxication.” If State’s attorneys would not attempt tо go beyond this and add unnecessary descriptive words, the trouble in the case before us and others would be obviated and the work of this court lessened. Tucker v. State, 94 Tex. Crim. Rep. 507. The allegation in the instant indictment that the liquor transported was “spirituous, vinous and malt liquor capable of producing intoxication,” gives opportunity for strong contention on the part of appellant that the State, while proving without controversy that the liquor was intoxicating, failed to prove that it was either spirituous, vinous or malt liquor.
The sheriff swore in this case that the tequila found in appellant’s car was “spiritual.” In a liquor case this means the same is spirituous. State v. Clark, 3 Ind. 451. The word “spiritual” is given in the Century Dictionary as a synonym for “spirituous“. This witness further said that he had always been taught that tequila wаs a spirituous liquor; that he had shown it to be such all the time; that it was intoxicating. He used other expressions in his testimony which furnished the basis for the attack by appellant upon the proof that the liquor was not in fact spirituous. The learned trial judge pоintedly told the jury that if they did not believe from the evidence beyond a reasonable doubt that appellant transported spirituous, vinous or malt liquor, capable of producing intoxication, they should acquit. Upon the trial appellant categorically admitted that the tequila found in his possession was intoxicating. We believe the jury justified in concluding that it was a spirituous liquor. In cases in which this question is a controverted one, attention of the State’s attorneys is called to the fаct that the State maintains its State Chemist at Austin, whose duty it is to analyze liquors, etc., sent to him by officers of the State, and whose analysis given in testimony would appear to entirely satisfy the demands of our practice in the matter of making full proof.
This in аddition to the opinion in chief and concurring therewith.
HAWKINS, Judge. I regret that I am unable to concur with my Brethren in the conclusion reached that the evidence sufficiently shows