
    WOODS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1912.)
    1. Criminal Law (§ 1091) — Appeal — Bill op Exceptions — Sufficiency.
    On appeal from a conviction for making sales of intoxicating liquor on Sunday, bills of exception reciting that defendant excepted to a question whether the witness issued defendant a liquor license on the ground that the license would be the best evidence, but that the question, was answered in the affirmative and to tes-mony that he issued a license to one J. P. W., although the evidence had not shown J. P. W. and accused to be the same person, are insufficient to require a review.
    ,[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, «2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Criminal Law (§ ' 1092) — Appeal—Bills op Exception.
    Where an exception in a prosecution for the illegal sale of intoxicants was reserved to a question as to whether witness issued a retail license to one J. P. W. on the ground that he .and defendant were not shown to .be the same person, the court’s approval of the bill of exceptions, reciting the objection, is not a certificate of the fact on which the objection was based, but merely of the exception.
    . [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 283^-2861, 2919; Dec. Dig. § 1092.]
    3. Intoxicating Liquors (§ 234) — Prosecutions — Evidence—Admissibility.
    Whether or not a license to sell intoxicants had been issued to accused is a fact which may be proved otherwise than by the exhibition of the license, this being particularly true in view of Acts 3lst Leg. (1st Ex. Sess.) e. IT, § 14, requiring the posting of licenses in some prominent place in the building in which the sale of intoxicants is carried on.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 298; Dec. Dig. § 234.]
    4. Criminal Law (§ 1091) — Appeal—Matters Presented por Review.
    In a prosecution for violating the liquor laws, a bill of exceptions reserved to the reading of an entry in a stub book kept by the officer issuing licenses for the sale of intoxicating liquor shows no error, where it does not show that the stub book or its contents were introduced in evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    5. Criminal Law (§ 665) —Trial — Reception op Evidence — Putting Witness Under Rule.
    It is within the discretion of the trial court to permit a witness who was placed under the rule and who heard the testimony to testify.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 1549-1566y3; Dec. Dig. § 665.]
    6. Criminal Law (§ 1168) — Appeal—Harmless Error.
    Where a witness who was improperly permitted to testify was unable to answer the question propounded, the error was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3136, 3144; Dec. Dig. § 1168.]
    7. Intoxicating Liquors (§ 227) — Evidence —Admissibility.
    In a prosecution for illegal sales of intoxicating liquors, it is proper to allow witness to testify that accused was engaged in the saloon business, even if it had not been shown that the retail license introduced in evidence was issued to accused.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 287; Dec. Dig. § 227.]
    8. Criminal Law (§ 1169) — Appeal—Harmless Error.
    In a prosecution for illegal sales of intoxicating liquors, where accused’s own witness stated that he owned the saloon, the improper allowance of evidence showing that he was engaged in the saloon business was harmless.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3088, 3137-3143; Dec. Dig. § 1169.]
    9. Intoxicating Liquors (§ 233) — Opeenses —Evidence—Admissibility.
    In a prosecution for sale of intoxicants on Sunday, it is not error to ask a witness whether he saw the side door of accused’s saloon open on a stated Sunday.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298%; Dec. Dig. § 233.]
    10. Criminal Law (§ 1170%) — Appeal — Bill of Exceptions.
    A bill of exceptions complaining of the allowance of a question whether the witness remembered when the grand jury was summoned, and how long before this it was that accused’s saloon was open, shows no error, where it appears that his answer was in the negative.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%-]
    
      11. Okiminal Law (§ 1091) — Appeal—Bill oe Exceptions.
    In a prosecution for sales of intoxicating liquor on Sunday, a bill of exceptions complaining of the admission of testimony by a witness that be got a pint of whisky for a sick man, taken by itself, shows no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S03, 2S15, 2816, 2818, 2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    12. Intoxicating Liquors (§ 224) — Offenses — Presumptions.
    There is no presumption that local option laws are in effect in a given territory, and hence in a prosecution for sales of intoxicants on Sunday made by a licensed dealer, the state having introduced his application for a license in which he made affidavit that prohibition was not in effect in the place in which he carried on his business, is not bound to show that the local option law had not been adopted.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 275-281; Dec. Dig. § 224.]
    Appeal from Burleson. County Court; R. J. Alexander, Judge.
    Frank Woods was convicted of an illegal sale of intoxicating liquor, and lie appeals.
    Affirmed.
    Buchanan & Stone, of Brenham, and T. J. Carter, of Somerville, for appellant. C. E. Lane, Asst. Atty. Gen. for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Reü’r Indexes
    
   PRENDERGAST, J.

Appellant was prosecuted and convicted under article 615, P. G., which is section 14 of the act approved April 17, 1909 (Acts 31st Leg. [1st Ex. Sess.] c. 17), commonly known as the “Fitzhugh-Robertson Liquor Law,” and his penalty fixed at a fine of $100.

This article of the statute is as follows: “Every person or firm having a license, who may be engaged in or who may hereafter engage in the sale of intoxicating liquors to be drunk on the premises (in any locality of this state, other than where local option is in force), shall close and keep closed their houses and places of business and transact no business therein or therefrom from and after twelve o’clock midnight until five o’clock a. m. of each week day, and shall close and keep closed their houses and places of business and transact no business therein or therefrom from and after twelve o’clock midnight Saturday until five o’clock a. m. of .the following Monday of each week; and any such person or firm, or his or their agent or employs who shall open or keep open, or permit to be opened or kept open, any such house or place of business for the purpose of traffic, or who shall sell or barter any intoxicating liquor of any kind, or who shall transact or permit to be transacted therein or therefrom any such business, between the hours aforesaid, shall be deemed guilty .of a misdemeanor, and, on conviction, shall be punished by a fine of not less than twenty-five dollars nor more than two hundred dollars, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment.”

The information charged that appellant on or about April 23, 1911, was a retail liquor dealer having a license as authorized by said act of the Legislature, and was then engaged in the sale of intoxicating liquors to be drunk on his premises where sold in a locality of the state other than where local option was in force, and that he did then and there unlawfully, after 12 o’clock midnight on Saturday, April 22, 1911, and before 5 o’clock a. m. of the following Monday, April 24, 1911, open and permit to be opened his place of business for the purpose of traffic, and did then and there barter and sell intoxicating liquor, to wit, whisky and beer in quantities of less than one gallon, and did transact therein and therefrom business between said hours. The evidence clearly shows that appellant violated said law, and was amply sufficient to sustain the verdict and judgment.

Appellant has a large number of bills of exceptions. Most, if not all, of them are very meager, and do not show sufficiently what the record shows nor the ease to require this court to pass upon them. The first is that upon the trial of the cause “while the witness for the state Wondrash was upon the stand, -upon direct examination, counsel for the state asked him the following question: ‘Q. .Did you issue a retail liquor dealer’s license to Mr. Frank Woods’’ To which question the defendant objected on the ground that said evidence would be secondary, and, if such license had been issued, the license would be the best evidence thereof, which objection was by .the court overruled, and the witness was permitted to answer said question, which he did, as follows: ‘A. I issued a retail dealer’s license to Mr. J. F. Woods.’ To which action of the court the defendant, by counsel, then and there excepted, and here now tenders this bill of exception, and prays that it may be examined, approved, etc.,” which was done.

His second bill is fully as meager as the one above. It shows that while said same witness was on the stand the state asked him: “Q. Did you issue a retail liquor dealer’s license to Mr. Frank Woods? A. I issued a retail liquor dealer’s license to Mr. J. F. Woods. Here is Mr. J. F. Woods’ application for a permit, his permit, his bond— [producing the instruments].” To which answer of the witness the defendant, by counsel, objected on the ground that the application, permit, and bond of J. F. Woods were not admissible in evidence against Frank Woods, and that J. F. Woods and Frank Woods had not been shown to be one and the same person, which objection the court overruled and the answer .was permitted to go before the jury, to which appellant excepted. See section 857, p. 557, and section 1123, p. 732, White’s Ann. C. C. P., for the rules about bills of exception, and some of the cases there collated. Conger v. State, 140 S. W. 1112.

It will be seen by each and both of these bills that there is no such statement made of the case as that this court can tell therefrom whether the questions and answers of the witness shown by these bills were admissible or not. It will be further noticed that the second bill shows that it was appellant’s objections and not stated as a fact by the court in the bill in approving it or otherwise that J. F. Woods, to whom the license was issued and the application, bond, etc., were made, was not Frank Woods, the defendant in this case. It has too often been decided by this court to need a citation to the cases to show that the uniform holding of this court is that an objection made to evidence asserted as a fact in the objection only is not a certificate by the judge, in approving the bill, that such was a fact. It is a mere objection. In this case even if we could consider this bill, and we could look to the record to ascertain whether or not the evidence showed that J. F. Woods and the defendant, Frank Woods, were other than the same person, we might find ample evidence to show that that was a fact. *

The first bill does not show that the contents of the license itself was attempted in any way to be proven — simply and solely whether or not the clerk had issued to appellant a license. Whether or not the said clerk had issued a license to appellant was an independent fact, which could be proven by him without the introduction of the license or proving its contents. Besides, section 28 of said act of 1909 requires that such license shall be posted in some conspicuous place in the house where the business for which license is necessary is carried on, and, of course, it must be kept posted there. Again, the information in this case itself charges that the appellant had such license, and upon all these grounds said testimony was admissible. So that, even if we could consider appellant’s bills on these grounds, no error is presented. If it had been attempted, and these bills had shown that the contents of said license was testified to by this witness, then quite a different question might be presented, but this is not the ease.

The evidence in this case shows that on June 15, 1910, appellant applied to the Comptroller of this state for a license to engage in the retail liquor business at Clay, in Bur-leson county, Tex., in a sworn application, complying in every particular with the requisites of such an application as prescribed by said act of 1909; that the Comptroller passed upon the same, and, after stating that his application in every way complied with the law and that he was qualified under the law as shown by his application to receive such license, permitted him to so apply for such license; that on June 23, 1910, he properly filed his petition before the county judge of Burleson county for such license, his petition therefor containing all the allegations prescribed under the law therefor, and that he desired to engage in the retail liquor business in said town of Clay; that the county judge properly, upon hearing his petition with all the necessary requisites alleged therein, granted the same; that he executed bond with the conditions and in the amount and strictly in accordance with said law; that he paid to the tax collector of Burleson county the amount of the tax fixed by law to entitle him to a license, and to engage in such business at said place. All these papers are those which are required by law, and which are required to be kept by the county clerk, and were produced by such clerk and introduced in evidence on the trial of this cause. The testimony further shows that said town of Clay was a very small place, and a very few inhabitants therein; that the appellant was engaged in the saloon business in said town at the time it was charged he violated said Sunday law. By the testimony of several witnesses, it was shown that on the Sunday charged in the indictment appellant’s saloon was open and kept open for some time for the business of selling intoxicating liquor, and that many sales were made of such liquor at the time; that a large crowd was in there, going back and forth, bringing out bottles of liquor and drinking, carousing around, making considerable noise and disturbance, and all drinking, and some more or less intoxicated;' that appellant was in his house and place of business while this was going on on that date. One witness swore that he himself bought such liquor from appellant personally on that day and occasion. Others show that he was present, and saw and could have seen what was then done.

Appellant himself did not testify, but his only clerk did, introduced by him. He testified that he was appellant’s clerk during said month of April, 1911, and worked in appellant’s store and saloon, sold groceries and dry goods, as well as liquors, and shows that he himself on that day as well as other Sundays, had appellant’s place of business open and sold liquor repeatedly on Sunday therein while working for appellant; but he claims that he did this against appellant’s instructions, and without his knowledge or consent; that he had the saloon open on Sunday, April 23,1911, some five or six times that day, not longer than 30 minutes at a time, and that at these times he sold intoxicating liquor; that he attended to all of the saloon business for appellant, but that appellant got the money therefor.

From all of the-facts and circumstances in this case the jury were clearly justified in believing and finding that a license to sell intoxicating liquors at retail was issued and delivered to appellant.

Appellant’s next bill shows that while this same witness Wondrash was on the stand he produced the original permit to apply for a retail liquor- dealer’s license, an application therefor, his bond, petition to the county judge, his annual tax receipt therefor, all in accordance with the requirements of said act of the Legislature which are all copied in full in the bill, and that they were introduced in evidence; that appellant objected to all of them for the reason that J. F. Woods had not been shown to be the same person as Frank Woods, the appellant in this case. What we have said in discussing the other bills applies to this, and shows that no error is shown.

Appellant’s next bill, No. 4, has the same heading as the above bills. Then states:

“While the state’s witness Joseph Wondrash was upon the stand, upon direct examination he produced a stub book kept by him, and started to read therefrom, which said stub book from which the witness read is in words and figures as follows, to wit:
r liquor 1
“ ‘Retail-! ma-l-fr [-Dealer’s License.
I Individual J
“ ‘For the sale of spirituous, vinous or malt liquors or medicated bitters. No. 48. Burle-son County, Issued to J. F. Woods. For the sale of spirituous, vinous and malt liquors and medicated bitters in quantities of one gallon, and less than one gallon, to be drunk on the premises, at No. - St Clay. Burleson County, Texas.
. “ ‘Date July 12, 1910. State Tax, $375.00. County Tax, $187.50. City Tax, $-.
. “ ‘Note. The Clerk will retain this stub.’
“To which reading the defendant, by counsel, then and there objected on the grounds:”

Then follow six separate and distinct grounds of objection. Then the bill proceeds: “Which objections were, by the court, overruled, and the defendant then and there excepted to the action of the court, and here now tenders this bill of exception, and prays that the same may be examined, signed, and by the court approved and ordered filed as a part of the record in this cause. This the 6th day of October, A. D. 1911. This was after the introduction of the different papers by the county clerk showing his authority to issue liquor dealer’s license to J. F. Woods. Allowed wiCh the above explanation. R. J. Alexander, County Judge Burleson County.”

If we could consider this bill, it would show no error whatever, for it states that, when said witness started to read from said stub book, the appellant objected to the reading, and the bill nowhere shows that the said stub book or what it is shown above to have contained was in any way or anywhere introduced in evidence.

Appellant’s next bill shows: That, when the state introduced its witness J. W. Woods, it asked him this question: “Mr. Woods, is J. F. Woods and Frank Woods one and the same person?” That the appellant objected to this for the reason that at the commencement of the trial all the witnesses in the case were placed under the rule, but that this witness, although present in the courtroom, was not placed under the tule, but was sitting in the courtroom listening to all the testimony. That the court overruled appellant’s objections and the witness answered: “I cannot say.” To this action appellant excepted. It was within the sound discretion of the court to permit a witness, although he had not been placed under-the rule, to testify in the case, and this bill does not show any such abuse of this discretion as would authorize this court to hold his action reversible error. Besides, the answer of the witness, as shown, did not, and could not, injure the appellant.

Appellant has nine bills of exceptions to this effect: That while the witness for the state, naming him, was upon the stand, upon direct examination, counsel for the state asked him this question: “What business is Mr. Woods engaged in at Clay? A.. He is in the saloon business at Olay.” To this question and answer appellant objected because said testimony was inadmissible; that ownership of a mercantile business could not be proven by general reputation; that the evidence was secondary, and not the best evidence to prove his occupation; that it was a mere opinion of the witness, and fended to prove an issuable fact by illegal method. The court overruled the objection, and in approving the bill qualified it by stating that it was allowed with the explanation that it was after the introduction of the papers by the county clerk showing the issuance of a liquor dealer’s license to J. F. Woods. This is, in substance, the full of each of said bills. No error is shown thereby. It was not attempted by this to show ownership, but simply and solely, as the questions and answers show, that the appellant was running a saloon business at Clay, which was entirely proper. Besides, appellant introduced his clerk and barkeeper, and had him testify as shown above that, appellant was engaged in the retail liquor business at said place on the date charged in the indictment; that he clerked for him, ran the business, etc., and appellant got all the proceeds of his Sunday sales.

Neither does the appellant’s bill complaining that the witness John Scott was asked the question, “Did you see the side door of Mr. Woods’ saloon open on the Sunday in April you were in Clay ?” and his answer that he saw it open on Sunday, but did not recollect whether it was church Sunday or not, show any error whatever.

Nor does appellant’s bill complaining that the state was permitted to ask the witness Jeff Morgan if he remembered when the men were summoned before the grand jury, how long before this it was he saw the saloon open, and his answer that he did not know, show any error whatever.

Nor does appellant’s last bill, which shows that the state asked the witness McKinney, ‘‘Did you get any whisky from Mr. Woods?” and to which he replied, “I went out to Mr. -Woods’ house and told him that Mark was sick, and sent me to get him a pint of whisky. Mr. Woods went with me to the saloon and got the whisky for Mark. Mark did not pay anything for the whisky” —show any error. The bill does not disclose what the status of the case was, nor what bearing this question and answer had on the ease, and therefore we cannot tell from the bill that it was in any way incompetent.

Appellant contends that the state failed to prove that local option was not in force at Olay where this offense is charged to have been committed. It has uniformly been held in this state by this court that we cannot presume, and do not judicially know, and cannot judicially know, that the prohibition law is in force in any county or subdivision thereof anywhere in this state; that such laws while general so far as being laws of the state are nowhere in operation or effective, unless and until a proper election is held therefor, carried and the law declared to be in force, and all this must be proven as a matter of fact where necessary in order to show that prohibition is effective in any given county or subdivision thereof. It has also been uniformly held by this court that the legal presumption is that prohibition is not in force in any given locality, but that every county and subdivision thereof in the state is presumed to be in what is ordinarily denominated “wet” territory. This being the case, we think it was not incumbent upon the state to prove that prohibition was not in force in the locality in Burleson county where appellant ran his retail liquor business. All the evidence and the uncontradicted evidence in this case introduced by both the state and the appellant showed that appellant was in the retail liquor business at the time' and place in which this offense was charged, and that he applied for license, and obtained license, to conduct such business as a retail liquor dealer and had a license therefor, which could not have been issued without the location was in “wet” territory and prohibition not in force therein. Besides, the appellant, in his application for license, expressly swore that there was no statute or ordinance in force in said territory prohibiting the retail sale of intoxicating liquor, and that he had been engaged in such business for the past two years. So that we hold there is nothing in this contention by appellant, even if it was incumbent upon the state to make such proof.

There is no bill of exceptions to appellant’s complaint of the claimed argument of the county attorney. So that we cannot consider appellant’s assignment on that subject.

The judgment will be affirmed.  