Robinson v. State , 167 Tex. Crim. 40 ( 1958 )

DICE, Judge.

Upon a trial before the court, without a jury, appellant was convicted under his plea of guilty to an information, which omitting the formal parts charged that he did “unlawfully possess a certain still, and mash, material, equipment, and supplies for the manufacture of liquor capable of producing intoxication” and his punishment assessed at 15 days in jail and a fine of $250.

A motion to quash the information on the ground that it was insufficient in law to charge an offense was timely presented by the appellant and by the court overruled.

Art. 666-17a(l) V.A.P.C. of the Texas Liquor Control Act provides:

“It shall be unlawful for any person to have in his possession any equipment or material designed for, capable of use for, or used in the manufacture of any illicit beverage.”

An “illicit beverage” is defined in Art. 666-3a(4) of the Act as;

“any alcoholic beverage manufactured, distributed, bought sold, bottled, rectified, blended, treated, fortified, mixed, processed, warehoused, stored, possessed imported, or transported in violation of this Act, or on which any tax imposed by the laws of this State has not been paid and the tax stamp affixed thereto; and any alcoholic beverage possessed, kept, stored, owned, or imported with intent to manufacture, sell, distribute, bottle, rectify, blend, treat, fortify, mix, process, warehouse, store, or transport in violation of the provisions of this Act.”

Under such definition, mere liquor capable of producing intoxication, as was alleged in the information, is not an “illicit beverage.”

It follows that the information did not charge an offense under the statute and that the appellant’s motion to quash should have been sustained.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.