Wiginton v. State , 51 Tex. Crim. 492 ( 1907 )

Appellant was convicted of violating the local option law; and prosecutes this appeal.

Appellant questions the information in this case. We have examined same and believe it is sufficient.

Appellant contends that the court erred in instructing the jury to the effect that local option was in force in Mason County at the time of the alleged offense. The court is only authorized to give a charge of this character when there is no controversy as to the validity of the election. In this case there was a controversy as to the question of the sufficiency of the notices posted, to the effect that an election had been ordered and would be held. Both the clerk and his deputy were put on the stand, and they do not appear to have been definite about the issuance of notices or to whom they were delivered. In our opinion the court should have submitted this issue to the jury; that is, whether or not the five notices of the election had been properly posted. See Frickie v. State, 39 Tex.Crim. Rep..

The court was correct in admitting the testimony with reference to the taste and color of the beverage sold as being similar to that of beer. If it be conceded that the testimony was sufficient in this case to show that the beverage sold was intoxicating, it was certainly not strong, and the court in another trial should carefully define what it takes to constitute intoxicating liquor, and should instruct the jury accordingly.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Brooks, Judge, absent.