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Tex.

intoxicant." This definition, as laid down in Black, Intoxicating Liquors, § 2, has been approved and followed in the decisions of the Texas court, as being the proper definition and true test of what constitutes an "intoxicating liquor" under the Texas Local Option Law. Dane v. State (1896) 36 Tex. Crim. Rep. 84, 35 S. W. 661; Decker v. State (1898) 39 Tex. Crim. Rep. 20, 44 S. W. 845; Taylor v. State (1899) Tex. Crim. Rep. 49 S. W. 589; Malone v. State (1899) Crim. Rep. 51 S. W. 381; Pike v. State (1899) 40 Tex. Crim. Rep. 613, 51 S. W. 395; Bailey v. State (1902) Tex. Crim. Rep. 66 S. W. 780; Murry v. State (1904) 46 Tex. Crim. Rep. 128, 79 S. W. 568; Ex parte Gray (1904) Tex. Crim. Rep. - 83 S. W. 828; Reisenberg v. State (1905) Tex. Crim. Rep. —, 84 S. W. 585; Pearce v. State (1905) 48 Tex. Crim. Rep. 352, 88 S. W. 234, 13 Ann. Cas. 636; James v. State (1906) 49 Tex. Crim. Rep. 334, 91 S. W. 227; Thompson v. State (1906) Tex. Crim. Rep. -,97 S. W. 316; Potts v. State (1906) 50 Tex. Crim. Rep. 368, 7 L.R.A. (N.S.) 194, 123 Am. St. Rep. 847, 97 S. W. 477; Walker v. State (1906) Tex. Crim. Rep., 98 S. W. 265; Francis v. State (1909) 56 Tex. Crim. Rep. 129, 119 S. W. 97; Mason v. State (1909) 56 Tex. Crim. Rep. 261, 119 S. W. 852; Murray v. State (1909) 56 Tex. Crim. Rep. 420, 120 S. W. 438; Murray v. State (1909) 56 Tex. Crim. Rep. 438, 120 S. W. 437; Arbuthnot v. State (1909) 56 Tex. Crim. Rep. 517, 120 S. W. 478; Sandoloski v. State (1911) 65 Tex. Crim. Rep. 33, 143 S. W. 151; Ex parte Townsend (1912) 64 Tex. Crim. Rep. 350, 144 S. W. 628, Ann. Cas. 1914C, 814; Salvador v. State (1916) 79 Tex. Crim. Rep. 343, 185 S. W. 12; Weinberg v. State (1917) 81 Tex. Crim. Rep. 306, 194 S. W. 1116.

In order to be an intoxicant under the Local Option Law, a liquor must come within the foregoing definition of an intoxicant, and the fact that the prosecuting witness became intoxicated, or that it produced any degree of intoxication in the prosecuting witness, is not the test. It must contain such a quantity of alcoholic stimu

Whether the liquor is spirituous, vinous, or malt, in order that the sale thereof be an offense in local option territory, it must be capable of producing intoxication, as shown above. If the liquor sold in the local option territory is not of an intoxicating quality-that is, if it is not such as to produce intoxication when taken into the stomach in such quantities as may practically be drunk-then it is not an offense to sell the same in local option territory. Ex parte Gray (1904) Tex. Crim. Rep., 83 S. W. 828; Reisenberg v. State (1905) Tex. Crim. Rep., 84 S. W. 585.

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So, in Decker v. State (1898) 39 Tex. Crim. Rep. 20, 44 S. W. 845, a prosecution under the Local Option Law, wherein it was a question in the case whether or not the liquor sold was an intoxicant, it was held that it was error to have charged that "intoxicating liquors are liquors which are intoxicating, and which are commonly used for such purposes; also any mixture of such liquors as, retaining their intoxicating qualities, it may fairly be presumed may be used as a beverage, and become a substitute for the ordinary intoxicating drinks;" as mixtures of liquors might be made retaining some intoxicating qualities, and yet not be intoxicating liquors.

In Murray v. State (1909) 56 Tex. Crim. Rep. 438, 120 S. W. 437, the trial court charged the jury as follows: "The law does not recognize any de

gree of intoxication, and any alcoholic liquor which will produce intoxication in any degree in law would be intoxicating liquor." The court also gave a charge that any liquor intended for use as a beverage, and capable of being so used, which contained alcohol, etc., in such proportion that it would produce intoxication when drunk in reasonable quantities such as the human stomach would ordinarily hold, was an intoxicant. The appellate court said: "The two charges are directly in contradiction of each other. The first quoted is not correct. This case comes within the rule laid down by this court in Decker v. State (1898) 39 Tex. Crim. Rep. 20, 44 S. W. 845. See also Black, Intoxicating Liquors, § 2. Mr. Black uses this language: '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.' It will be seen that, tested by this rule, which has been adopted by this court in all of its decisions, the first quoted charge is erroneous, and this is specially emphasized in this case, as it was a serious question on the trial whether or not the liquor sold was an intoxicant. This charge was calculated to confuse the jury; and especially so in view of the subsequent charge given, the two propositions being directly in conflict."

Likewise, in Taylor v. State (1899) Tex. Crim. Rep. 49 S. W. 589, and in Taylor v. State (1899) Tex. Crim. Rep. 49 S. W. 590, it was held that a charge that "the word 'intoxicating,' as used in the statute, is to be taken in its ordinary definition, that is, that it means 'making drunk,'" and that if, therefore, the jury believed from the evidence that the liquor alleged to have been sold by the defendant to the prosecuting witness did not intoxicate the latter, "according to the definition above given," then to find the defendant not guilty, was erroneous, as the fact that the prosecuting

witness did not get drunk was not proof of the fact that the liquor bought of the defendant was not intoxicating.

So, in Malone v. State (1899) Tex. Crim. Rep. —, 51 S. W. 381, it was held that a charge that "it is not necessary, to complete this offense, that the article sold be alcohol or whisky; but, if you believe from the evidence that the article sold, if any, was intoxicating, and was such an article as could be used and drunk as an intoxicating beverage, and if you further believe that the defendant, knowing that such article was intoxicating, and that it could be used as an intoxicating beverage, sold the same as alleged, then the offense would be completed, no difference under what name it was sold,"-was not complete as a correct definition of "intoxicating liquor," and that a requested charge, embodying the approved definition, should have been given.

In Pike v. State (1899) 40 Tex. Crim. Rep. 613, 51 S. W. 395, it was held that the following charge was properly refused, as not presenting the law of the case: "Not every liquor that can by any possibility produce intoxication is an intoxicating liquor, within the meaning of the Local Option Law. But an intoxicating liquor, the sale of which is forbidden by the Local Option Law, is one that is classified as a beverage manufactured and sold with the intent that it shall be sold as such. A liquor that is not manufactured and sold with the intent that it shall be used as a beverage is not an intoxicating liquor, within the meaning of the Local Option Law, although large quantities of it might produce intoxication."

In Murry v. State (1904) 46 Tex. Crim. Rep. 128, 79 S. W. 568, it was held that a charge that if the jury believed "the article sold was a medical preparation, and was not intoxicating liquor if drank in reasonable quantities," and that if they believed the defendant sold an article known as "Dandelion Alterative," and further believed that the "Dandelion Alterative" was not intoxicating liquor, if drank in reasonable quantities, then

they should acquit the defendant,was not a correct exposition of the law, inasmuch as it was qualified by the expression, "if drunk in reasonable. quantities." This expression was undefined, and, not being equivalent to saying, "when drunk in such quantities as may practically be drunk," therefore left the charges in an unintelligible condition.

In Francis v. State (1909) 56 Tex. Crim. Rep. 129, 119 S. W. 97, it was held that a special charge should not have been given which directed the jury to acquit the defendant if they believed that the liquor sold by the defendant "did not contain alcohol in sufficient quantity, when drunk in quantity such as the ordinary stomach of a reasonable man, to produce intoxication."

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In Thompson v. State (1906) Tex. Crim. Rep., 97 S. W. 316, it appeared that the court gave the following charge: "You are instructed that 'intoxicating,' as used in this charge, means that if any liquid is taken in the human stomach, and is absorbed into the human stomach, and has the effect of producing an intoxicated condition, such liquid is intoxicating." It was held that this was not, of course, an accurate definition of intoxicating liquor, which was confined to spirituous, vinous, or malt liquors; that is, liquors containing alcohol, produced either by distillation or fermentation, capable of producing intoxication when taken into the human stomach in such quantities as it might reasonably contain.

In Walker v. State (1906) Tex. Crim. Rep., 98 S. W. 265, it was held that a charge was erroneous which instructed the jury "that alcohol is per se an intoxicant, and when sold as a beverage, whether in a concoction or alone in any quantity, will constitute a violation of the law," as instructing them that if the liquor in question contained alcohol in any quantity, regardless of its effect on the human stomach to intoxicate, it was an intoxicating liquor.

In Mason v. State (1909) 56 Tex. Crim. Rep. 261, 119 S. W. 852, it was held that the following charge was

erroneous, as being an incorrect definition of intoxicating liquor: "By intoxicating liquor is meant any liquor used as a beverage that has a sufficient quantity or per cent of alcohol to produce intoxication in any degree, when such liquor is taken in such quantities as may be practically drunk."

In Bailey v. State (1902) Tex. Crim. Rep., 66 S. W. 780, it was held that a charge that, if the jury believed from the evidence that the defendant sold a certain liquor, and that if they further believed that the same was intoxicating liquor according to the definition previously given them, they should find the defendant guilty; but that, if they believed that the defendant sold the liquor, and that it contained alcohol, but had a reasonable doubt as to its containing alcohol in such proportion that it would produce intoxication when taken in such quantities as might practically be drunk, then they should acquit the defendant, submitted the issue as to whether the liquor sold was intoxicating to the jury, in appropriate terms.

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In Murry v. State (1904) 46 Tex. Crim. Rep. 128, 79 S. W. 568, it appeared that the court gave a special instruction prepared by the defendant as follows: "The mere fact that the preparation has alcohol in it will not make it intoxicating liquor in contemplation of the statute, but, in order for alcohol to render it such intoxicating liquor, it must contain alcohol to such an extent as to render it capable of producing intoxication when drank as a beverage." It was held that, this definition having been given at his request, he could not complain that the court had failed to give the definition of intoxicating liquors in his general charge.

In Weinberg v. State (1917) 81 Tex. Crim. Rep. 306, 194 S. W. 1116, the court said: "The court should have instructed the jury, as requested by appellant, that before they could convict they must believe the beverage to be an intoxicant. If the liquor sold was not an intoxicant, or there was a reasonable doubt of that, appellant had not violated the Local Option Law.

This special charge contained the accepted definition in our decisions as to what an intoxicant is under that law, as follows: 'Any liquor intended for use as a beverage, or capable of being used, which contains alcohol either obtained by fermentation or by the additional process of distillation, in such proportion as it will produce intoxication when taken in such quantities as may practically be drunk, is an intexicant.' This has been recognized by the authorities and elementary writers as a proper definition of what is an intoxicant. Upon another trial this charge should be given. Appellant would not be guilty if he did not sell intoxicating liquors. The special charge lays down the recognized rule, since Decker v. State was written by Judge Hurt in 39 Tex. Crim. Rep. 20, 44 S. W. 845."

In Sandoloski v. State (1911) 65 Tex. Crim. Rep. 33, 143 S. W. 151, it was held that the court had not erred in refusing to give the defendant's special charges, as they defined intoxicating liquor incorrectly, requiring the liquor to be such as would, when drank "in such quantities as the human stomach would practically hold, produce such intoxication as would result in unconsciousness or delirium." The court said: "Delirium hardly ever occurs, except in those cases where intoxicants are drank to excess for a long-continued period of time, and the charges requested are not the law. The court gave a correct definition, instructing the jury: 'Intoxicating liquor, as used in this charge, is a 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.'"

In Pike v. State (1899) 40 Tex. Crim. Rep. 613, 51 S. W. 395, it was held that a charge that, if the jury believed from the evidence "that said blackberry cordial can be used as a beverage, and that when so used in sufficient quantities it will produce intoxication, it is an intoxicating liquor

within the meaning of the statute," etc., even if inaccurate, was not so inaccurate as to injure the rights of the defendant.

A charge that "the law does not recognize any degrees in intoxication, and any alcoholic liquor which will produce intoxication in any degree in law would be intoxicating liquor," was held not to have been prejudicial to a defendant, since, under the Local Option Law, if the liquor was intoxicating, and was sold in violation of the law, the seller would be guilty, whether or not the purchaser was intoxicated in any degree. Frickie v. State (1899) 40 Tex. Crim. Rep. 626, 51 S. W. 394; Terry v. State (1903) 44 Tex. Crim. Rep. 411, 71 S. W. 968.

The expression, "intoxicating liquor of any kind," in the prohibition amendment to the Arizona Constitution, was said in Brown v. State (1915) 17 Ariz. 314, 152 Pac. 578, to have been intended to cover liquors or admixtures of liquors not enumerated before, and, to sustain a charge of an illegal sale under it, it would be necessary both to allege and to prove the liquor intoxicating; that is, that it would produce intoxication when taken to capacity.

In other states, the term, "intoxicating liquors," or "liquors," or "alcoholic and spirituous liquors," means liquors capable of being used as a beverage, and containing alcohol in a sufficient quantity or proportion to produce intoxication, "when drunk to excess." Marks v. State (1909) 159 Ala. 71, 133 Am. St. Rep. 20, 48 So. 864; Chapman v. State (1896) 100 Ga. 311, 27 S. E. 789; Colwell v. State (1900) 112 Ga. 75, 37 S. E. 129; Mason v. State (1907) 1 Ga. App. 534, 58 S. E. 139; Roberts v. State (1908) 4 Ga. App. 207, 60 S. E. 1082; Stoner v. State (1909) 5 Ga. App. 716, 63 S. E. 602; Fuller v. Jackson (1910) 97 Miss. 237, 30 L.R.A. (N.S.) 1078, 52 So. 873; Bacot v. State (1908) 94 Miss. 225, 21 L.R.A. (N.S.) 524, 136 Am. St. Rep. 574, 48 So. 228.

An Alabama statute (Act of November 23, 1907, § 1) provides in part that "it shall be unlawful for any person to manufacture, sell, .