Dabney v. State , 141 Tex. Crim. 16 ( 1940 )

Appellant complains in his motion because of the fact that the minutes of the commissioners' court of Young County in the year 1896 do not contain an entry showing that the then county judge of that county had designated a newspaper in which the order of the commissioners' court of that county declaring the result of the election held in that county should be published. He says that on account of the fact that such an order does not appear in said minutes, then that there is no valid law in such county prohibiting the sale of intoxicating liquors therein.

It is noted, however, as said in our original opinion, that there was proof made by an exhibition of four of the issues of the "Graham Leader" showing the publication of the order of the commissioners court declaring the result and prohibiting the sale of such liquors in said county, and appended thereto is also shown the certificate of the then county clerk, a portion of such order being as follows:

"IT IS THEREFORE ordered that the sale of intoxicating liquors within the limits of Young County, Texas, be and the same is hereby absolutely prohibited except for purposes and under the regulations prescribed by law, until such time as the qualified voters therein at a legal election held for that purpose, by a majority vote, decide otherwise. It is further ordered by the Court that this order be published for four consecutive weeks in some newspaper published in Young County.

"THE STATE OF TEXAS

"COUNTY OF YOUNG

"I, A. T. Gay, Clerk of the County Court of said County, do hereby certify that the above and foregoing is a true and correct copy of an order passed by the Commissioners' Court of Young County at a special session of said Court, on the Eighteenth day of March A.D. 1896, as the same appears of record in Book 5, pages 165 and 166 of the Minutes of said Court.

"(SEAL) Witness my hand and seal of office, at Graham, Texas, this March 19, 1896.

"A. C. Gay

"C. C. C. Y. C. T."

We have heretofore held in the Holland Case, 51 Tex. Crim. 147,101 S.W. 1002, that a designation in the order of the commissioners court of a newspaper in which the court's order was to be published was sufficient upon which this appellate court might predicate its presumption that such newspaper was also designated by the county judge as the vehicle in which the publication of such order should be made. In that case we held:

"The general principle with reference to presumptions of this character is that it will be presumed in favor of judicial acts, x x x; that is, there is a disposition in courts of justice to uphold official and judicial acts rather than to render them inoperative; and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking essential to the validity of those acts, and by which they were probably accompanied. See 2 Best on Evidence, p. 629, sec. 353, etc. In accordance with this rule we hold that it will be presumed in favor of the certificate by the county judge showing that publication was made in a certain paper that he (the county judge) selected same, although there are no apt words in the order directly stating that he did make the selection. The fact that he made publication in a certain named paper is tantamount to a selection, in the absence of some showing to the contrary; and the naming of the paper by the commissioners court does not antagonize or destroy this presumption."

Again in Johnson v. State, 52 Tex.Crim. R., we held:

"x x x The fact that the county judge certifies that such publication was made, in the absence of anything to the contrary, will be sufficient proof that same was made in a newspaper selected by him and under his direction."

We have also held in the Beaty Case, 53 Tex.Crim. R.,110 S.W. 449, that if the county judge had failed to make an entry in the minutes of the court showing the publication of the commissioners' court's order, that same could be proven by oral testimony. To the same effect is the holding in the Ezell Case, 29 Texas App. 521.

In this case, in the trial court there was actually presented the copies of the paper in which the order of the commissioners' court of Young County was published, which order bears evidence of its verity in the certificate of the county clerk. Under these circumstances we think it a fair presumption to say that this paper, the Graham Leader, was designated by the county judge as the newspaper in which the order of the commissioners' court was to be published. Especially is this so since the general rule is in favor of upholding judicial acts rather than to hold the same inoperative. It will be further noticed that this local option election was held in the year 1896, about forty-six years ago, and doubtless many of the officers connected therewith, as well as the voters therein, have gone the inevitable way of mortality, and we do not feel disposed at this time to declare this local option law to have been void all through the years of its observance, its temporary suspension during statewide prohibition, and its revival by constitutional enactment. We think we are authorized to and in the absence of any facts to the contrary we do presume that the Graham Leader was properly designated by the county judge as the newspaper for the publication of this order, and therefore overrule bill of exceptions No. 1.

Bill of exceptions No. 2 relates to the fact that the witness Allen was allowed to testify that while he was being waited on by appellant in the purchase of a bottle of gin, another party came into this room and "said he wanted some whisky." There is nothing further shown in the bill as to whether he got any whisky or not, nor is it shown what the answer of appellant was to such request or statement. We see no error nor injury reflected in the admission of such testimony. All that occurred during this transaction seems to have been res gestae.

Bill of exceptions No. 3 seems to be based upon the fact that the witness who bought the bottle of gin was allowed to read the lettering on the label on this bottle before the jury, the objected to testimony being as follows:

"This bottle had this Federal stamp on it and the back reading Hiram Walker White Swan distilled dry gin, Peoria, Ill. 85 proof distilled and bottled by Hiram Walker, Peoria, Ill. 1/2 pint U.S. Internal Revenue Tax paid bottle stamp. Internal Revenue distilled spirits 1/2 pint."

The major objection directed to this testimony being that such label was not placed thereon by appellant and was not the best evidence to prove that "the bottle contained liquor prohibited by law."

We think the bottle as well as its contents were admissible, regardless of what its label showed. The witnesses testified that the bottle sold by appellant contained gin, and we judicially know that gin is an intoxicant. See 17 Tex. Jur., p. 241, and a large number of cases there cited. It will also be noted that Art. 666-3a Vernon's P. C. denominates "gin" as an alcoholic beverage and the record shows that the State's witness testified that he asked appellant for one-half pint of gin, and that he was given by appellant one-half pint of gin, and paid him for same.

We perceive no error in this record, and the motion is overruled.