Appellant was convicted in the county court of Young County on a charge of violating the local option law and assessed a penalty of $100.00, from which he appeals.
The evidence shows that appellant was clerk in a drug store known as Miller Drug Store No. 3; that he was a regular pharmacist authorized to fill prescriptions. The prosecuting witness was an inspector for the Liquor Control Board. He testified that he went into the store and bought the liquor in question without a prescription and without in any manner complying with the law. Appellant denied that he sold the whisky without a prescription and denied that he had ever seen the witness before.
Appellant's bill of exception number one complains of the testimony of H. I. Trout, editor of the Graham Leader, a weekly *Page 18 newspaper which has been regularly published in Young County since prior to 1896. The records of the Commissioner's Court in the year 1896 show sufficiently the orders relative to a local option election and that the results were declared, but do not show the publication of the order declaring the results as required by the law at that time. To supply this, the prosecution called Mr. Trout, who brought with him certain numbers from the volume of the Graham Leader published during that year which showed the publication of this order for the period of time required by law. He testified on direct and cross examination that he has been editor of the paper for several years; that he has custody of the files which are kept in a vault and that at least one copy of each issue of the paper is kept as a part of the files. He produced what he testified to be the original copies of the paper and read them into the record. He was not the editor at the time of the publication and had not at all times had charge of the files.
Objection was raised to this testimony as being hearsay. In the case of Ray v. State, 137 S.W.2d 1031, which is an appeal from Young County, the question came before us in a little different form, but with the objection that it was hearsay. In that record it was shown that the editor had made an affidavit and placed it on the record of the commissioner's court. The affidavit was admitted in evidence and it was held to be hearsay. In the instant case the editor comes into court to testify as a witness and presents what he says is the original file showing the publication. We think this is distinguishable from the Ray case and that it is not an ex parte statement subject to the objection that it is hearsay, as was held in that case. This objection is overruled.
Bill of exception number two contains the following objection to the quoted evidence:
"That he walked into the Drug Store and told the defendant that he wanted 1/2 pint of gin and he following him back to the liquor room, the both went in there, and the defendant wrapped up witnesses liquor and while he was in there another man rushed in and said he wanted some whisky that he the witness paid for the gin he got, he gave the defendant a One Dollar bill and got thirty five cents in change. He knows where the 1/2 pint of gin is at this time, it is right there (pointing). That is the same gin he bought at the time and place from the defendant.
"To which testimony the defendant objected because the *Page 19 same was prejudicial and was an attempt to prove an extraneous crime."
This objection was overruled by the court and the bill on the subject is approved.
Recognizing the law, as stated, that the State would not be permitted to prove an extraneous crime unless it comes within one of the exceptions to the rule, still we are unable to conclude that the bill shows error. In the first place, the objection is not directed to any particular part of the quoted testimony. Some part of it was certainly not subject to that objection. The trial court was not in position to exclude admissible evidence in order to sustain appellant's objection even though it also included evidence which was inadmissible. Neither are we in position to say the trial court erred. In the second place, the evidence as quoted merely states that, "while he was in there another man rushed in and said he wanted some whisky." It does not say that the witness testified appellant sold him any. Someone rushing in and saying he wanted some whisky shows no offense either by the party saying it or by the appellant himself. There is no statement that another sale was made and, consequently, no extraneous crime was shown. In the state of the bill there was no error.
Appellant's bill of exception number three shows no error, and the same is passed without discussion.
The judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.