Appellant contends that the facts sufficiently show that he was acting as the agent of the State's witness in the purchase of the two bottles of Grand Prize beer, and that Furr who delivered the beer was not appellant's agent. We think the facts quoted in the original opinion show that Furr was an employee of appellant, and that the jury had a right to conclude that, according to the system operated under by appellant, he took the order and in two or three minutes Furr carried out and delivered the cold beer to McBride, the State's witness. Furr worked at appellant's place of business, and had been working there for quite awhile. He came from a building close to appellant's filling station, where tires, oil, etc., were stored, when delivering the beer. In about five minutes thereafter McBride purchased a bottle of whisky from appellant himself, which whisky was brought forth from the same outhouse building from which the beer came.
The sheriff testified that under a search warrant he found 14 cans of Falstaff cold beer in an outhouse building, which was located about four feet from the filling station. Mr. Furr was working for appellant, so appellant told the sheriff, and was present at the search.
We think the purchases of McBride and the method of their deliveries were pertinent to show with what purpose appellant possessed the 14 cans of Falstaff beer, and the jury evidently utilized such to show his possession for the purpose of sale. *Page 296
It is shown by the evidence that Young County became a dry area in 1896 by virtue of an election then therein held; that in 1934 an election was held to determine whether 3.2 per cent beer should be therein allowed, and such election resulted in the allowance of the sale of such beer. In 1937 again an election was held in such county relative to the prohibition of the sale of beer containing alcohol not exceeding 4 per cent by weight, and such election resulted in favor of the prohibition of the sale of such liquors.
It will be noted that beer is defined in Art. 667-1, Vernon's Penal Code, as a malt beverage containing one-half of one per cent or more of alcohol by volume and not more than 4 per cent of alcohol by weight.
Many objections and bills of exceptions are leveled at the introduction of the orders for the calling and result of such last election, none of which seem to be meritorious. The ballot presented to the people to vote within this last election is in conformity with that set forth in Art. 666-40 (a), Penal Code, Vernon's Texas Statutes 1937-1939, Cumulative Supplement, such act taking effect September 1, 1937, which was prior to the calling of the last election.
We also call attention to Art. 666-40a, P. C. relative to a contest of such elections, and note that appellant's complaints in the major portion of his bills of exceptions relate to irregularities in the commissioners court's orders directing the county judge to call such election, in the county clerk posting the notices, or having same posted, as well as the method whereby the judges of such election were appointed, etc. The above Art. 666-40a, P. C. provides that such elections may be contested in the district court of the county wherein same were held within thirty days after the result thereof has been declared, and if no contest be thus filed, then it shall be conclusively presumed that said election as held and the result thereof declared are in all respects valid and binding upon all courts. We think appellant's attack upon these procedural matters comes too late.
Appellant files an affidavit herein relating to the trial court's refusal to sign some of his original bills, and the court's preparation of his own bills in lieu of appellant's refused bills. *Page 297
The statute provides for bystanders' bills in the event of dissatisfaction with the court's bills. Appellant seeks to excuse his failure to except and to prepare bystanders' bills by the great distance of his attorney's home from the place of trial, and his ignorance of the fact that the trial court had prepared and filed such bills. Such circumstances were doubtless unfortunate, but they are such that the attorney could control, and we do not feel justified in considering his ex parte affidavit in this matter.
We adhere to the conclusion reached in the original opinion.
The motion is therefore overruled.