This conviction was for violating the local option law, the punishment assessed being a fine of $25 and twenty days imprisonment in the county jail.
The facts in this case show that Mack Bennett, the prosecuting *Page 580 witness, about Christman, 1906, in the town of Santa Anna, Coleman County, went into appellant's clubroom and told appellant he wanted some whisky. Appellant replied he had no whisky, but he could order some for witness, and witness could get it to-morrow. "I told him I wanted it now; he said may be you can borrow some. Mr. Riley there might loan it to you. I then asked the party whom the defendant called Riley if he would loan me some whisky; that I had ordered some from Mr. Coleman, and he said yes, and he told the defendant to let me have a quart of his whisky. The defendant then handed me a quart of Riley's whisky. I don't know what became of the whisky I ordered. The defendant has never delivered it to me." The witness gave at the time of making the order $1.25 to the defendant. The defendant in his own behalf testified that he took prosecuting witness' order, at which time he received the $1.25 and he subsequently delivered the whisky.
Under the above state of facts the court charged the jury as follows: "You are therefore instructed that if you believe from the evidence in this case beyond a reasonable doubt that the alleged prosecuting witness Mack Bennett on or about the 22nd day of December, 1906, or within two years anterior to the presentment of this indictment, did in justice precinct No. 7 in Coleman County, Texas, borrow a quart of whisky and that same was intoxicating, from any person with the understanding and agreement that the said witness Mack Bennett had ordered whisky or would order whisky and when his, the said Mack Bennett's whisky came, the person so loaning said whisky, if any, was to have whisky returned to him for the whisky so loaned, if any, and you further believe from the evidence beyond a reasonable doubt that the defendant Dave Coleman was present at the time and with the knowledge of such agreement, if any, to the said Mack Bennett, said quart of whisky so loaned, if any, at the instance and request of the person loaning same, if any, then you are instructed that the said loan of said whisky, if any, under such circumstances, if any, would be an unlawful sale of intoxicating liquor within the meaning of the local option statute, and the defendant Dave Coleman under such circumstances, if any, would be a principal in the said sale and would be guilty of a violation of the local option law, and if you so believe from the evidence beyond a reasonable doubt it would be your duty to find the defendant guilty, and assess his punish ment at a fine of not less than $25 and not more than $100 and by imprisonment in the county jail for a period of not less than twenty days and not more than sixty days. And in this connection you are charged that it would be necessary to constitute a sale for the State to prove that the witness actually returned the whisky if any borrowed.
"Fourth. Although you may believe there was no loan of whisky under above instructions, still you are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant Dave Coleman on or about the 22nd day of December, 1906, or within two years anterior to the presentment of the indictment herein did in *Page 581 justice precinct No. 7, Coleman County, sell to Mack Bennett one quart of whisky and that same was intoxicating liquor, then it would be your duty to find the defendant guilty and assess this punishment at a fine of not less than $25 and not more than $100 and by imprisonment in the county jail for a period of not less than twenty days and not more than sixty days." Paragraph No. 3 is in strict consonance and accord with the principle of law laid down by this court in the case of Tombeaugh v. State,50 Tex. Crim. 286; 17 Texas Ct. Rep. 472. For authorities to support the latter case see Taggart v. State, 97 S.W. Rep. 95; Treadway v. State, 42 Tex.Crim. Rep.; Stanley v. State,43 Tex. Crim. 270, and Barnes v. State, 88 S.W. Rep. 804. We think the charge of the court is, as suggested, correct.
Appellant insists the court erred in permitting over his objection the witness to testify that Santa Anna was located in justice precinct No. 7 of Coleman County, Texas. The prosecution was instituted for violating the local option law of precinct No. 7, and it was proper to prove that the town of Santa Anna was in said precinct. Nor do we think that the court erred in permitting the witness Riley to testify that defendant was a tenant of his, and was occupying the witness' house at the time of the sale. This is a circumstance to show familiarity of the witness with appellant, and is corroborative of the State's theory of a sale. Nor was there any error in permitting the witness to testify that defendant had internal revenue license for the sale of malt liquors in his place of business.
Appellant insists the court erred in refusing to permit the defendant to introduce in evidence the order dated October 6, 1906, given by the witness Bennett to the defendant for whisky. The court refused to approve the bill presenting this matter.
Appellant further complains that the court erred in permitting the State to prove by the witness Simmons, and interrogate him relative thereto, about there being other clubrooms in the town of Santa Anna. This testimony was not admissible. See Efird v. State, 44 Tex.Crim. Rep.. However, the bare fact in this instance was proved, and in view of the fact that appellant received the minimum fine it is not such error as could have injured appellant.
Appellant insists that the court erred in permitting the State to read in evidence other orders of the commissioners court not pertaining to the local option law in question, because same could not prove any issue in the case, and that the order certifying the correctness of the minutes of the commissioners court threw no light on whether the county judge had published the order declaring the result of the local option election in question, and had written and signed same, or that the county clerk had made and signed said order. This testimony was admissible because it was part and parcel of the minutes of the court.
Appellant insists that the order of the county judge upon the minutes showing that local option election had been published for four consecutive *Page 582 weeks was in the handwriting of the county clerk. In the case of Walker v. State, 52 Tex.Crim. Rep.; 106 S.W. Rep. 376, we held that the county judge was not required to act as his own amanuensis, but that if he authorized the clerk to enter the order the same was valid. Here the record before us shows the county judge signed the minutes with an order declaring the result as having been published by him in the minutes. We think this is sufficient.
We further hold that the court did not err in forcing appellant to testify that he received commissions on orders for whisky, or in making him admit that he had retailers' liquor license.
On the trial of the case appellant introduced a judgment of acquittal of a man named Riley, above spoken of, who assisted in the sale in this case, thereupon the State, over objection of appellant, proved by the county judge that he found the witness Riley innocent because the testimony of the prosecuting witness did not identify Riley as the man who let him have the whisky. We do not think this was erroneous, and if so, it was not such error as was calculated to injure appellant in view of the minimum punishment.
The court did not err in charging that local option was in force in precinct No. 7. The orders were in all things regular.
The indictment is in proper form, and has been approved by this court several times during the present sitting.
We have examined appellant's special charges in the light of the main charge, and we do not find any error of the court in refusing same, but think the charge of the court properly presented the law of this case.
Finding no error in the record, the judgment is affirmed.
Affirmed.