280 S.W. 218 | Tex. Crim. App. | 1926
The offense is the unlawful possession of a preparation containing in excess of one per cent of alcohol by volume; punishment fixed at confinement in the penitentiary for a period of two years.
The indictment reads thus:
"* * * J. L. Huddleston did then and there unlawfully possess and have in his possession for the purpose of sale, a preparation containing in excess of one per cent of alcohol by volume."
The sufficiency of this pleading is attacked upon various grounds. The statute upon which the prosecution is founded reads thus:
"It shall be unlawful for any person * * * to possess * * * for the purpose of sale, * * * spirituous, vinous or malt liquors or *110 medicated bitters, or any potable liquor, mixture or preparation containing in excess of one per cent of alcohol by volume." (Art. 667, P. C. 1925.)
This section denounces a different offense from Article 666 P. C., which prohibits the traffic in intoxicating liquor. See Estell v. State, 91 Tex.Crim. Rep.; 240 S.W. Rep. 913; McNeil v. State, 93 Tex.Crim. Rep., 247 S.W. Rep. 536.
The point is made that the indictment is bad in failing to describe the preparation as "potable". The statute does not prohibit the possession of all preparations containing in excess of one per cent of alcohol by volume, but applies to a "potable" preparation; that is to say, a drinkable preparation or a preparation usable as a beverage. See Webster's New International Dictionary defining the word "potable". In our opinion, the point is well taken. The language of the indictment, namely, "a preparation containing in excess of one per cent of alcohol by volume" would include many preparations which are not beverages, and many drugs in common use, such as paregoric, laudanum and various tinctures containing in excess of one per cent of alcohol by volume, and valuable as medicine, but not potable or usable as beverages. In fact, the indictment does not describe the preparation as a liquor of any description.
For the reasons stated, the judgment of conviction is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
