
    SANTIKOS v. STATE.
    (No. 6295.)
    (Court of Criminal Appeals of Texas.
    June 8, 1921.
    Rehearing Denied Oct. 12, 1921.)
    1. Criminal law <©==>400(3) — Tax assessor’s testimony as to contents of inventory of taxable property held admissible.
    In prosecution for operation of theater on Sunday, in violation of Pen. Code 1911, art. 302, in which defendant denied ownership of theater, tax assessor’s testimony as to contents of inventory of property rendered by defendant for taxation, constituting a public record in assessor’s office, held admissible as a circumstance against defendant upon the issue of ownership, in view of Rev. St. arts. 7547, 7562, though assessment was not taken by the assessor in person, but by one of his deputies, and though assessor was not present at the time and was not acquainted with defendant’s signature.
    2. Criminal law <©=»! 169(2) — Admission of evidence harmless in view of other uncontra-dicted evidence sustaining finding.
    In prosecution for operation of theater on Sunday in violation of Pen. Code 1911, art. 302, involving issue of defendant’s ownership of theater, the admission of tax record to prove ownership, if error, was harmless where there was sufficient uncontradicted evidence aside from such record to support the finding of the jury as to defendant’s ownership.
    Appeal from McLennan County Court; Giles P. Lester, Judge.
    L. Santikos was convicted of violating Pen. Code 1911, art. 302, prohibiting the exhibition of certain amusements for pay upon Sunday, and he appeals.
    Affirmed.
    W. L. Eason, of Waco, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for violation of article 302 of; the Penal Code, prohibiting the exhibition of certain amusements for pay upon Sunday. Appellant assails the correctness of the court’s ruling in admitting in evidence, over appellant’s objection, the assessment of his property for taxes. The evidence shows that the amusement was conducted on Sunday for pay in a place called the Royal Theater. The ownership of the theater was in issue. The state relied upon circumstances to establish the ownership of the property; that is, to establish the connection that appellant had with the operation of the theater. By one witness it was proved that the appellant admitted that he wafe the owner of the theater. It was shown that appellant had his office over the room in which the theater was conducted, and was often seen about the theater.

The operator of the machinery declined to disclose the name of his employer, for the reason that it would incriminate him, and the assistant manager refused to name the manager, or to state whether the appellant was connected with the business or not. Others testified that the Royal Theater was the appellant’s place of business; that he had his office upstairs; that he ran the theater, and managed it; and that he admitted that he owned it.

In the bill of exceptions it was shown that the tax assessor appeared as a witness, and stated that he had an inventory of the property rendered by the appellant for taxes in McLennan county for the year 1920; that he did not make the assessment in person, but that it was done by one of his deputies; that he was not present at the time; that he was not acquainted with the signature of appellant; that this inventory was a public record of the assessor’s office, and bore date April 20, 1920.

The offense was charged to have been committed on the 23d day of January, 1921. Our statute (Rev. St. art. 7547) requires of the assessor that he ascertain and take a list of the taxable property, and provides in detail for a form of assessment blanks. See article 7562. Touching this character of evidence, Mr. Wigmore, in his work on Evidence, says:

“The duty of a tax assessor requires him ordinarily to ascertain, for each piece of property, the person owning or occupying it and the value of the property. It is also clearly his duty to record the facts thus ascertained. The only objection to the admissibility of his record as evidence of these facts must arise from the principle already considered (ante, § 1635), that the record of the assessor is not of his own personal deeds or observation, but of facts occurring without his observation. . This objection is of no force when the officer’s duty clearly requires him — as in the assessor’s case— to depend upon investigation. If the assessor does not merely record the sworn statement of the claimant, but also satisfies himself by independent means, and follows his own judgment, his finding deserves some credit.”

Among the cases cited by the author supporting the text as applicable to the ownership of property, we mention Winter v. Bandel, 30 Ark. 362; Tolleson v. Posey, 32 Ga. 372; Painter v. Hall, 75 Ind. 208; Beekman v. Hamlin, 23 Or. 313, 31 Pac. 707; Fudge v. Marquell, 164 Ind. 447, 72 N. E. 565, 73 N. E. 895; Ivey v. Cowart, 124 Ga. 159, 52 S. E. 436, 110 Am. St. Rep. 160.

We think the testimony was evidence of the contents of the public record, admissible as a circumstance against the appellant upon the issue of ownership. If in that view we were mistaken, the receipt of the-evidence could not work a reversal, for the reason that 'there is no evidence controverting the admission and circumstances which the state introduced, and which were sufficient, aside from the tax record, to support the finding of the jury that the appellant was the owner of the Royal Theater.

The judgment of the trial court is therefore affirmed. 
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