McChristy v. State ( 1939 )

CHRISTIAN, Judge.

The offense is possessing intoxicating liquor in a dry area for the purpose of sale; the punishment, confinement in jail for thirty days.

Operating under a search warrant, officers went to appellant’s residence and found therein approximately five gallons of “chock” beer. H. H. Cudd, a chemist of the Texas Liquor Control Board, testified that the liquor in question contained 3.53 per cent of alcohol by weight. He said: “I did not drink any of the liquid I analyzed because it was not drinkable.” Garrett Hawkins, Deputy District Supervisor of the Texas Liquor Control Board, who participated in the search and seizure, said: “I did not drink any of the liquid. It did not look fit to drink.” To the same effect was the testimony of W. C. Anderson, a witness for the State.

It was alleged in the information and complaint that the liquor the officers discovered in appellant’s home was an “Alcoholic Beverage.” Art. 666-3a, Vernon’s P. C. of the State of Texas, Annotated, reads in part as follows: “ ‘Alcoholic Beverage’ shall mean alcohol and any beverage containing more than one-half of one per cent of alcohol by volume which is capable of use for beverage purposes, either alone or when diluted.” It is observed that the testimony was to the effect that the liquor in question was not drinkable. Lexicographers define “drinkable” as follows: “Capable of being drunk; fit to drink.” If the liquid in question was not drinkable it was not an alcoholic beverage as that term is defined in the statute. Hence the averment in the indictment that such liquid was an alcoholic beverage had no support in the evidence. It follows that the judgment must be reversed.

The judgment is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examinel by the Judges of the Court of Criminal Appeals and approved by the Court.