44 S.W. 845 | Tex. Crim. App. | 1898
Conviction for violating the local option law. It appears from the record that two elections had been held in Johnson County. The first election resulted in favor of prohibition. The second election resulted the same way. The Commissioners Court, when they counted the vote cast on the second election, found that it was in favor of prohibition, but failed and refused to declare the result and prohibit the sale of intoxicating liquors. It is not denied by appellant that the first election was held regularly, and that prohibition carried. But it is contended that, because the Commissioners Court failed to proclaim the result of the second election, therefore prohibition did not exist in Johnson County. We can not agree to this contention. Prohibition was in force in Johnson County by virtue of the first election, and there was but one way to repeal it in that county, and that was by a subsequent election, at which the majority of the votes of that county were east against it. It is not pretended that this was the result of the second election, but it is conceded that prohibition carried on the second election.
There is a conflict in the testimony as to whether the liquor sold to Riley, as charged in the indictment, was intoxicating. Riley says that he thinks it was beer. Henry Frio states that he drank something that Riley got at Mrs. Cann's (the place where the liquor in question was bought). Thinks it was malt tonic, hop ale, or something like that. "It was, in my judgment, lager beer. I think it was beer. Had no intoxicating effect upon me. It was bought publicly. Don't know whether it is intoxicating or not." Dane testified that it was lager beer. A number of witnesses testified that they used hop ale or malt tonic frequently, and that it was intoxicating. Mrs. Cann and a number of others testified that it was not intoxicating liquor; that it was not beer. So we find an issue of fact in which the testimony is conflicting. Now, the court upon this subject instructed the jury as follows: "You are instructed that intoxicating liquors are liquors which are intoxicating, and which are commonly *24 used as beverages for such purposes; also any mixture of such liquors as, retaining their intoxicating qualities, it may be fairly presumed may be used as a beverage, and become a substitute for the ordinary intoxicating drinks." This charge was excepted to at the time. We think it is erroneous. There is no necessity of any presumptions about this matter. Mixtures of liquors may be made retaining some intoxicating qualities, and yet not be intoxicating liquors. The best definition we have seen of intoxicating liquors is given by Black, as follows: "Any liquor intended for use as a beverage, or capable of being so used, which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such a proportion that it will produce intoxication when taken in such quantities as may practically be drunk, is an intoxicant." Inasmuch as it was a question in the case whether or not the liquor sold was an intoxicant, the charge as given was calculated to confuse and mislead the jury, and was therefore erroneous. The judgment is reversed, and the cause remanded.
Reversed and remanded.
