Clark v. State

248 S.W.2d 741, 157 Tex. Crim. 319, 1952 Tex. Crim. App. LEXIS 1786

Opinions

DAVIDSON, Judge.

Possessing whisky for the purpose of sale in a dry area is the offense; the punishment, a fine of $100 and fifteen days in jail.

It is contended that the proof is insufficient to show that the order putting local option into effect had been properly published. As to this, the state introduced in evidence the order of the commissioners’ court of Panola County, dated December 21, 1904, canvassing returns and declaring the result of the election, showing that prohibition had been adopted. The county judge was therein ordered to publish “this order for four successive weeks in some Newspaper published in Panola County, Texas.” Some forty-six years thereafter, on March 21, 1951, Margie E. Neal made the following affidavit:

“ ‘THE STATE OF TEXAS :

“ COUNTY OF PANOLA :

“THAT I, MARGIE E. NEAL, BEING editory of the EAST TEXAS REGISTER during the Prohibition Election held in Panola County, Texas, on the 10th day of December, 1904, do hereby solemnly swear that the County Judge notice of results of said election, was published in my newspaper in the following issues:

January 6, 1905

January 13, 1905

January 20, 1905 January 27, 1905

and that below is a true and correct copy of said notice which appeared in said issues of the EAST TEXAS REGISTER. . . .’ ”

The order of the commissioners’ court declaring the result of the election above referred to was copied in full in the affidavit. The affidavit was duly copied into the commissioners’ court minutes.

Objection was made to the receipt in evidence of the affidavit as being hearsay and insufficient to constitute proof of the publication of the order.

In support of this objection, reliance is had upon the case of Ray v. State, 138 Tex. Cr. R. 553, 137 S. W. 2d 1031, which apparently sustains such position. On the other hand, it appears that the case of Spears v. State, 136 Tex. Cr. R. 55, 123 S. W. 2d 674, and Cook v. State, 146 Tex. Cr. R. 523, 176 S. W. 2d 941, authorize the introduction of the testimony.

We have concluded that the holding in the Cook case and the reasoning there given are correct.

The Ray case, supra, in so far as it announces a contrary doctrine, is hereby overruled.

In the light of appellant’s admission as a witness, the conclusion is expressed that the facts are sufficient to show the possession of more than a quart of whisky.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.