Opinion
No. A-7241.
Opinion Filed October 19, 1929.
Appeal from County Court, Kiowa County; J.S. Carpenter, Judge.
Sam Allen was convicted of having the unlawful possession of beer with intent to violate the prohibitory liquor laws, and he appeals. Reversed.
Clayton Carder, for plaintiff in error.
Edwin Dabney, Atty. Gen., for the State.
The plaintiff in error, who for brevity will be referred to as defendant, was convicted in the county court of Kiowa county on a charge of having the unlawful possession of beer with intent to violate the prohibitory liquor law, and was sentenced to pay a fine of $300 and to serve 30 days in the county jail.
The record discloses that certain officers went to the dwelling house of defendant with a search warrant and discovered a quantity of choc beer or home brew in bottles. The search warrant does not describe the place to be searched other than the private residence of defendant. It does not state where the residence is located, even that it is in Kiowa county. There is no proof that the concoction found was intoxicating. No analysis was made. Cortez Thompson, who procured the search warrant, testified:
"* * * Q. Did you examine that to tell whether or not it was intoxicating? A. Nothing only breaking a few bottles.
"Q. You did not taste it did you? A. No, sir. * * *"
Lee Watson, a deputy sheriff who assisted in the search, testified:
"* * * Q. Did you open any of the bottles and examine any of it? A. I never. * * *"
Bill Humble, another deputy sheriff, testified:
"* * * Q. State what you found there, Mr. Humble? A. 76 bottles of home brew.
"Q. Did you examine that to see what it was? A. Nothing only just saw it in the case. I never tasted it.
"Q. You never tasted any of it? A. No, sir.
"Q. Could you tell whether or not it was beer or home brew? A. Home brew. * * *"
Joe Cornelius, another deputy sheriff, testified:
"* * * Q. Do you know what was found there? A. Yes, sir.
"Q. State to the court what it was? A. We found sixty-seven bottles of home brew. * * *
"Q. Can you tell whether home brew or beer is intoxicating? A. I imagine I can.
"Q. State to the court whether or not that bottle was intoxicating? A. I did not drink enough to get intoxicated, but it has got a kick to it. * * *"
In order to sustain a conviction for having the possession of intoxicating liquor, such liquor must be of the class of which the court takes judicial notice that it is intoxicating, or there must be proof that it is intoxicating or contains as much as one-half of 1 per cent. of alcohol, measured by volume. This may be proved by an analysis or the testimony of some person who is shown to be qualified and can testify that such liquor is intoxicating. The proof in this case is insufficient.
The case is reversed.