
    STEPHENS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 14, 1911.
    On Motion for Rehearing, Oct. 18, 1911.)
    1. Criminal Law (§ 594) — Continuance-Absence oe Witnesses — Diligence.
    Accused, having been indicted February 16, 1911, did not apply for process for witnesses until March 1, 1911. No reason was shown why process was not earlier sued out, and the subpoenas issued were made returnable March 6th. The witnesses were not found in the county, and process directed to another county was returned not served for want of time. A subpoena was subsequently issued for witnesses in another county, and returned with the information that they had moved without the state. The testimony which defendant expected to obtain from certain of these witnesses was' impeaching in character. Held, that the denial of a continuance for their absence was not error.
    [Ed, Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321-1332; Dec. Dig. § 594.]
    2. Criminal Law (§ 448) — Evidence—Opinion.
    Under Act April 18, 1905 (Acts 29th Leg. c. 160), requiring every shipper of intoxicating liquors to a point within prohibition territory to place on the package the names of the consignor and consignee, and the words “intoxicating liquors,” evidence in a prosecution for pursuing the occupation of selling liquors in prohibition territory by a driver of an express wagon that he hauled for accused packages marked intoxicating liquors from the express office to the place where accused did business was not objectionable as opinion evidence because the witness had no personal knowledge of the contents of the packages.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1051; Dee. Dig. § 448.]
    3. Intoxicating Liquors (§ 233) — Wrongful Sale — Records of Express Company-Evidence.
    Act April 18, 1905 (Acts 29th Leg. c. 160), requires that each person who shall place any package containing any intoxicating liquor with any express company for shipment to prohibition territory shall place on the package the name of the consignor and consignee, and the words “intoxicating liquors” in plain -letters, and makes the violation of such section a misdemeanor. It also requires that, when any express company shall receive any package containing intoxicating liquors for transportation to a prohibition territory, it shall transport the liquor, and enter in its books the names of the consignor and consignee and the date of arrival, and subjects the express company to a penalty for violation. Held, that such act makes the entries on the packages and in the books and papers of the express companies quasi public records and admissible in evidence in a prosecution for pursuing the occupation of selling intoxicating liquors in prohibition territory on proof that they were the records kept by the express company and identifying them, though they were not proved by the officer or agent of the express company making the entries; it also appearing that accused had signed such records as a receipt for the packages referred to therein.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 293-298%; Dec. Dig. § 233.]
    4. Intoxicating Liquors (§ 205) — Offenses —Business of Selling — Indictment.
    An indictment for pursuing the business of selling intoxicating liquors in prohibition territory, alleging that prohibition had been adopted in F. county, and that thereafter and on specified dates defendant did unlawfully and not as -permitted by law engage in the occupation of selling intoxicating liquors in violation of law, and did. inake certain sales specifically described, at least more than twice, was sufficient.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    "5. Criminal Law (§ 369) — Evidence of Other Offenses — Wrongful Sale of Liquor.
    In a prosecution for pursuing the occupation of selling intoxicating liquors in prohibition territory, evidence of other sales than those alleged in the indictment, made at about the same time as those on which the state relied for a conviction, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Intoxicating Liquors (§ 223) — Evidence —Variance.
    Where, in a prosecution for engaging in the business of selling intoxicating liquors in prohibition territory, the indictment only charged sales of whisky, the admission of evidence that witness, among other packages delivered to accused, delivered a cask marked “Beer,” was not reversible error.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Dec. Dig. § 223.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Tom Stephens was convicted of engaging in and pursuing the occupation and business of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Cunningham & McMahon, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otlier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   PRENDERGAST, J.

Appellant was indicted for engaging in and pursuing the occupation and business of selling intoxicating liquors in Fannin county in the fall of 1910, after prohibition was in force at an election held in 1903. He was tried and convicted, and his penalty fixed at two years confinement in the penitentiary.

The evidence by the state shows: That W. E. Campbell testified that in the fall of 1910 he bought a pint of whisky from the appellant at two different times, and paid him $1 for each pint. “The first time was in Tanktown right this side of that thicket down there in the road.” Appellant had the whisky in his hand, and the witness saw it. A month or two later he bought the second pint. That this second purchase was at appellant’s house. This was in November, 1910. This witness did not see anybody at appellant’s house except negroes. He went there hunting for whisky.

Wesley Pea testified: That during the fall of 1910 he bought whisky from the appellant twice, one quart the first time, for which he paid $2; a half gallon the second time, for which he paid $4. The first purchase was at appellant’s house in what they call Tahktown, and the same place the second time. He did not know whether the purchase at either time was on October 21st or not. He bought the whisky for Joe .Peevey the first time. The second time he bought it for himself and his cousin. When he got the first whisky, he went in appellant’s house and called for it, and appellant went in a room, opened a trunk, got it out, and gave it to him. The next time he went appellant said he did not have any, but, if the witness would wait a little bit, he would get it, and he waited. The appellant went off north and got it. He did not know where he went. That he was only gone a few minutes.

Frank Belcher testified he bought whisky from appellant in the fall of 1910 four, five, or maybe six times. He bought a half pint the first time and paid appellant a dollar for it. This was in September, 1910. He got two pints the second time, and paid a dollar a pint. The third time he got a quart and paid either $1.50 or $2. Appellant said it was barrel goods and came a little cheaper. The next time he got two quarts, and paid $2.25 a quart for it. He made two trips to get the last two quarts. When he first went to appellant’s house, appellant said he would get it for him, and meet the witness down at a little old bois d’are thicket, and witness went there and appellant did meet him there. The first time he got whis-ky from appellant, appellant was at his house, and got it out of a dresser drawer. The next two times it was at appellant’s house also. The last time was in daytime and once or twice about sundown or a little after, and the other times after night. Appellant'said that business was good last fall at election time, would be pretty good, but he did not want witness to come down there with a crowd. If witness would drive down there with anybody in a buggy, appellant would not let him have it. He said he did not care about anybody coming with witness on foot, but he did not want so many buggies coming down there; that people would get suspicious about it. The first time witness got whisky from appellant he got it out of the north room, twice out of the south room, and the last time he did not know what part of the house he got it from.

Lige Lawrence testified he bought a pint of whisky from appellant one time and paid him a dollar for it in September, 1910.

Forrest Hardin testified he was working for the American Express Company during the fall months of September, October, and November, 1910. He drove the delivery wagon for the express company, and made delivery of express packages for the company during said time. There was a certain territory at the town of Bonham,. and Tank-town was outside of the free delivery of express packages by the express company. The appellant employed the witness to deliver packages from the express company to him at his place outside of this free delivery territory, and paid him 25 cents per package therefor. During said time — September, October, and November, 1910 — the witness delivered many boxes and packages to the appellant at his place, for which the appellant paid him 25 cents per package. All of the packages which he delivered appellant were about two feet long and a foot or a foot and a half high. The appellant would come to the express office, sign up for the stuff, and then hire the witness to haul it to his house. Appellant could not sign his name, but would sign it by a mark, or have some one sign it for him. The agent of the express company at this place kept a record of intoxicating liquors shipped through the office there and their weight. Such deliveries of these packages were made to the appellant sometimes once a week, sometimes twice a week, and sometimes oftener during this whole period. The express company’s books at this place were then exhibited to the witness, and liquor sheets also made out by the agent of the company at this place were also shown to him, and he identified the books and sheets as the ones kept by the express company at this place. The special liquor sheets had to be signed by the appellant before the packages were delivered to him. All of these packages delivered by this witness to appellant were marked “intoxicating liquors” on the boxes or packages. The witness did not open the boxes or packages, and did not of his own knowledge know what was contained therein. All he knew of what was contained therein was what was marked on the packages, and the record kept thereabouts. All of these boxes and packages came from other places, and were addressed to the appellant Tom Stephens. Appellant could neither read nor write, and witness did not read to him what was on the outside of said packages. It seems that these records and books and office of the express company were at the city of Bonham, and that Tanktown was some suburb of Bon-ham outside of the free delivery territory of the express company at Bonham.

Roy White testified he was then agent for the express company in Bonham, and had control and custody of the records and books of the company. The books of the company for this place were then exhibited to and identified by the witness as the books of the company during said period. These records and books show -where goods were shipped from and who it was delivered to. In some instances it shows the character of the goods delivered. The witness was familiar with the way the books were kept, and they were correctly kept to the best of his knowledge. They were the books of the company kept at that place, and were turned over to him at the time he took charge of the office as the records and books belonging to and kept by the company at that place. The witness did not see the entries made in the books. In connection with this witness’ testimony, these books of the American Express Company were introduced in evidence by the state, and showed during September, October, and November, 1910, the following:

“Out of Et. Worth a keg of beer signed by Tom 'Stephens, weight 100 lbs. 90$.
“3 boxes consigned to Tom Stephens wt. 160 lbs. collect $1.05. I can’t tell who they were delivered to. It was signed at the train by Mr. Smith. I presume it was signed by him; signed by waybill.
“Sept. 5 Tom Stephens out of Ft. Worth box weighs 56 lbs. collect 75$. Here is two other boxes, one wieghs 56 and the other 50 lbs. — collect 25$ and 65$. They are signed waybill again.
“Sept. 7th out of Ft. Worth cask beer 250 lbs. collect $1.50 delivered at train. Signed Tom Stephens.
“Sept. 12, box liquor for Tom Stephens wt. 50 lbs. collect 65$. Delivered at train a keg of beer delivered at train.
“Sept. 19 out of Ft. Worth 2 boxes Tom Stephens & Co. wt. 120 lbs. Tom Stephens signed by his mark. W. S. That shipment was delivered to Tom Stephens himself.
“Sept. 19, % barrel 180 lbs. collect $1.10. Tom Stephens (signed by his mark).,
“Sept. 26 out of Ft. Worth cask wt. 250 lbs. collect $1.50 and he signed ‘on hand’ sheet.
“Sept. 27 out of Ft. Worth a box for T. Stephens wt. 50 lbs. collect 65$ signed waybill.
“A cask for Tom Stephens wt. 250 lbs. collect $1.50 signed waybill.
“Sept.-28. Out of Ft. Worth, Tom Stephens 55 lbs. collect 70$. Signed O. H. ‘on hand’ sheet, by Tom Stephens.
“Sept. 30, out of Ft. Worth box Tom Stephens wt. 50 lbs. collect 65$ signed ‘on hand’ sheet by Tom Stephens.
“Out of Ft. Worth cask Tom Stephens wt. 250 lbs. collect $1.50 signed ‘O. H.’ This is signed by Tom Stephens, but it don’t give his mark.
“On Oct. 3rd, out of Ft. Worth two boxes Tom Stephens wt. 100 lbs. 90$ collect, signed ‘O. H.’ Tom Stephens, his mark.
“Oct. 6th, out of Ft. Worth a box for Tom Stephens wt. 55 lbs. 30$. collect, signed ‘on hand.’
“Oct. 7th, Tom Stephens two boxes 110 lbs. $1.00 collect ‘O. H.’ sheet Tom Stephens, his mark.
“Oct. 10 two boxes liquor Tom Stephens 100 lbs. 90$ collect, signed by his mark.
“Oct. 14 out of Kansas Oity two boxes of liquor Tom Stephens & Oo. wt. 98 lbs. signed Tom Stephens, by his mark.
“Oct. 15th two boxes of liquor out of Ft. Worth wt. 100 lbs. Signed Tom Stephens by his mark.
“A cask of beer to Tom Stephens 100 lbs. collect 60$. Signed Tom Stephens by his mark.
“Oct. 21 out of Kansas Oity bbl. liquor Thomas Stephens wt. 179 lbs. Signed Thomas Stephens by his mark.
“Oct. 31 out of Ft. Worth box of liquor Tom Stephens wt. 50 lbs. Signed Tom Stephens by his mark.
“Nov. 2nd box of liquor out .of Ft. Worth for Tom Stephens wt. 50 lbs. collect 65$. Tom Stephens by his mark.
“Another one wt. 50 lbs. Tom Stephens his mark.
“Nov. 3rd a box of liquor out of Ft. Worth, Thomas Stephens, 100 lbs. collect 60$. Signed by his mark.
“Nov. 7th out of Ft. Worth a box of liquor wt. 50 lbs. collect 65$. Signed Thomas Stephens by his mark.
“Nov. 10th box of beer out of Ft. Worth, Thomas Stephens 100 lbs. collect 60$. Thomas Stephens his mark.
“A box of liquor Thomas Stephens wt. 50 lbs. Signed Thomas Stephens, his mark.
“Nov. 22nd out of Ft, Worth box of beer for Thomas Stephens 25 lbs. 2 doz. bottles of beer from Rosenberg & Mason, Ft. Worth, Thomas Stephens.
“Box of beer wt. 100 lbs. collect 60$. Signed Thomas Stephens, his mark.”

On cross-examination this witness further testified: That he became agent for the express company November 29, 1910. That prior to that he was messenger for the company, and was not in the office at -Bonham. From November 29th to the present he had been local agent at Bonham for the American Express Company. That the above entries read by witness up to November 22, 1910, were not made at the time he was in the office, and he did not see any of these entries made. Of his own knowledge he did not know what was in the boxes or packages.

E. E. Bryant testified that in the early fall of 1910 he delivered to appellant a cask of beer. Appellant signed for it at the time of the delivery. He signed for it at the American Express Company’s office. The average weight of a case of whisky is about 50 pounds, and the average weight of a cask of whisky is about 250 pounds. There are 10 dozen bottles in a cask, and the witness thinks they put a dozen pint bottles in a case. The barrel of beer he delivered to appellant at his house. He did not see what was inside of the barrel, but went by the marks on it..

O. B. Fincher testified that he knew the appellant; that he has known him since last August; that he lived in Bonham; and that he never caught the appellant at work any time during last fall. ■ Witness knew where the American Express Company’s office was located in Bonham, and he sometimes or frequently saw the appellant at that office.

Henry Browning testified he was night watchman and lived in Bonham, knew the appellant; that he did not know of appellant doing any manual labor of any kind during last fall; liad seen him on the walk around the American Express Company and in it a few times.

Charley Erwin testified he was city marshal of Bonham; knew the appellant; that he did not know of appellant doing any manual labor or work of any kind during the fall of 1910; that he had seen him standing around the comer at the American Express Company’s office.

W. B. Leeman testified that he did not know of appellant doing any manual labor of any kind since he worked' at the roundhouse some time last summer or latter part of the spring.

Bob Russell testified he was a peace officer in Bonham for two years, and knew appellant ; that he had not known him to do any manual labor in the last four or five months ; that he had seen him around the American Express Company’s office.

The defendant introduced six witnesses who testified that the general reputation of Prank Belcher was not good. Some of these testified that his reputation for honesty was not very good. He also introduced two witnesses who testified that the general reputation of W. E. Campbell for truth and veracity was bad. Another witness for the appellant testified that about August or September, 1910, the appellant was in business with appellant’s brother, Lem Stephens, and that he then sold him a bill of groceries. He made this particular trade with appellant. At first he billed the goods to Stephens Bros., Lem and Tom, and later changed it to Lem only. This change seems to have been about Christmas. This, in substance, is all the testimony.

1. Appellant has filed a brief in which he presents several matters which are raised by bills of exception and in his motion for new trial. The first question he presents is that the court erred in overruling his motion for continuance'on account of absent witnesses. The motion for continuance and the bill of exception to the overruling of the motion do not show when appellant was arrested. The indictment was returned and filed in the lower court February 16, 1911. Presumably the appellant was at once arrested. The motion for continuance shows that not until March 1, 1911, did the appellant apply for any process for any of these witnesses. It then shows that on that date he had process issued to Bowie county for Joe and Will Jones, and to Fannin and Mc-Lennan counties for Joe and Randall Peevey to be returned on March 6, 1911. No reason is shown why process was not earlier sued out. The subpoenas to Bowie and Fannin were both returned not served on Joe and Will Jones and Joe and Randall Peevey. The process to Fannin county for the Peeveys shows that they were not in the county. The process to McLennan county was returned not served for the want of time. Why the process was made returnable on March 6th is not shown. Still later process was again issued to McLennan county for the Peeveys returnable on March 13th. This process ■ was returned at once showing that the Peeveys had removed from McLennan county to the Indian Territory about 20 years before that date, and were not found in McLennan county. The second subpoena for the witnesses Jones was issued March 6th, returnable on 13th, and does not appear to have ever been placed in the hands of the sheriff of Bowie or any other county, and no return is made thereon. So that as to Joe and Will Jones unquestionably the diligence was not sufficient. On March 13, 1911, the day on which the case seems to have been tried, appellant in his motion for continuance says that on that morning for the -first time he learned from a neighbor that Joe Peevey was in Corsicana temporarily on a visit, and that Randall Peevey was at Soper, Okl., and that, as he was in jail, he was unable to locate these witnesses until the time indicated, and had to rely on his attorneys therefor. It is our opinion that the diligence to secure these witnesses is not shown to be sufficient to entitle him to a new trial under the circumstances. Besides this, the only testimony that he alleges he expected to make by the Peeveys was that Wesley Pea, one of the state’s witnesses, would swear that the first time he bought whisky from appellant he did so for the Peeveys, and that on his return to them, when they asked where he got the whisky, he said to them he did not know the negro he got the whisky from, and that he will now swear that he got the whisky on that occasion from appellant, and that he knew appellant at that time and prior to the sale. It will be further seen that the testimony of the Peeveys, therefore, was merely for the purpose of impeaching the witness Pea. A continuance will not be granted to procure such testimony. The appellant in his brief does not present this question on the witnesses Jones, but presents it only on the witnesses Peeveys. So that the court did not err in overruling appellant’s motion for a continuance, nor in overruling his motion for a new trial on that ground.

2. The next question presented by appellant’s brief is in regard to the testimony of the witness Hardin, the substance of which is given above. This bill seems to be a kind of running bill of exception. It contains about four pages of typewritten matter, the substance of which, however, was that the appellant objected to the testimony of this witness that he hauled boxes or packages from the express company in Bonham to the place of appellant at Tanktown, and that it was out of the free delivery limits of the express company, that the appellant paid him therefor, and hired him expressly to deliver these several packages, and to his stating that the packages that he hauled for ap-; pellant at appellant’s instances were marked on the packages “intoxicating liquors.” The grounds of objection were that the testimony of the witness was opinion testimony ; that he did not have personal knowledge of what was in the packages; that the packages were marked by others, and the marking-in no way bound the appellant. The court in allowing the bill qualified it by stating that the witness testified the packages or boxes were labeled “intoxicating liquors” on each one. The court further qualifies the bill by stating that page 14 of the statement of facts recording the testimony of said witness was excluded from the jury at the appellant’s instance. Apparently what is indicated to be excluded was what the witness said about the appellant living outside of the free delivery limits of the express company. If this is not what the court indicates, we do not understand that feature of his explanation.

.By the act of April 18, 1905 (Acts 29th Leg. e. 160), every person who shipped intoxicating liquors from any point without to any point within prohibition territory was required to place in a conspicuous place on such package or parcel names of the consignor and consignee, and the words “intoxicating liquors” in plain letters, and made it an offense not to do so. This act also required the express companies to enter upon their books upon the arrival of such packages within prohibition territories the names of the consignor and consignee, and other data of such package, and made it an offense for any express company to fail or refuse to do this. The appellant was shown to have received and receipted for each of these packages so marked. This witness did not attempt to testify that any of these packages contained intoxicating liquors of his own knowledge. In fact, the effect of his testimony is that he personally did not know what was in these packages or boxes because he did not open them. The court did not err in admitting such testimony. Coleman v. State, 54 Tex. Cr. R. 235, 112 S. W. 769.

3. The next question raised by appellant’s brief and shown by his fifth bill of exception complains of the action of the court in permitting the witness Roy White to produce, and the state to introduce, the books of the express company with the entries made therein, the substance of which is given above in his testimony. This bill shows that the books and papers of the express company, of which he was agent at Bonham, Tex., were the books of the company which were kept at that place, and, when he took charge there, they were turned over to him by the preceding agent as the books and records of the company kept in its business; that he was familiar with the way they were kept, and that they were correctly kept to the best of his knowledge; that he became such agent on November 29, 1910; that he was not in the office at the time these entries were made, and did not see any of them made, and of his own knowledge he did not know what was in any of the said boxes. The testimony was objected to by appellant for the reason that the said books were not proved up as required by law; that they were immaterial, irrelevant, incompetent, and hearsay; that it is not shown that the records are correctly kept nor who kept them, and it is not shown that the person making the record knew what the packages contained or their weight, or that any person knew their contents by their weight. The court allowed this bill with the explanation that this court upon examining the testimony of said Hardin would see that the appellant came to the express company’s office two or three times every week during the fall and signed for the packages marked “intoxicating liquors,” and paid that witness for hauling them to his house. As stated above, the law required the express company to keep a record in its books of sufch matters as are shown by the books of this express company, and the testimony of this witness Hardin, to which we are referred by the court’s explanation, shows that the appellant himself in person receipted for these packages on these books and papers pertaining to these several shipments and had this witness to haul these packages from the express company’s office to his place at Tank-town, for which he paid him. It will be thereby seen that, although the appellant himself as is shown by the testimony could neither read nor write, he was a party personally to the making of these recqrds by his signature thereon for these packages, and is so connected personally and had such knowledge of the entries in these books as to make them a part of his transaction. The proof also shows, as is shown by the bill of exceptions, that these records are sufficiently prima facie proven to be correctly made so as to make them admissible in this character of case against the appellant. It is not like proving up the books and papers of some one else with which the appellant had no connection whatever, as was held by this court in the case of McConico v. State, 133 S. W. 1047, but in our opinion they were clearly admissible in this case against the appellant.

4. The above are all of the questions presented by appellant’s brief, and we take it they are all the material ones. However, the appellant made a motion to quash the indictment on various grounds, which was overruled by the lower court. The indictment in this case was clear and full showing that prohibition had been adopted in Fannin county properly and legally in 1903, and that on or about October 25, 1910, the appellant in Fannin county, Tex., did then and there unlawfully, and not as permitted by law, engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law, which was then and there in full force and effect, and that he did then and there on or about August 30, 1910, make two sales of intoxicating liquors to W. E. Campbell, and on or about November 25, 1910, he did make two sales of intoxicating liquors to Wesley Bea, and on or about September 1, 1910, he did make four sales of such liquors to one Frank Belcher, and did on or about October 24, 1910, make one- sale of such liquor to Bob Barrett, and on or -about said dates he did make' other and different sales of such liquors to persons to the grand jury unknown, and did in said county and state during the months of August, September, October, November, and December, 1910, make more at least than two sales of intoxicating liquors in violation of said law. All the questions raised by said motion have already, been decided against appellant by this court in the case of Slack v. State, 136 S. W. 1073, and other cases.

5. Another bill of exceptions by appellant complains of the testimony of the witness Lige Lawrence,, wherein he testified that some time during the fall of 1910 he bought whisky one time from the appellant, because th-e indictment does not charge this particular sale, and that such testimony was irrelevant, immaterial, and prejudicial to appellant. The court allowed this bill with the explanation that the indictment alleges that other sales were made by appellant to parties unknown to the grand jury. In this character of offense the gist of it is that the party accused engaged in or pursued the occupation or business of selling intoxicating liquors in violation of law, and, while this court has^held that) the persons to whom at least two sales have been made and their dates shall be alleged, proof of sales about the same time by the appellant of two others are clearly admissible, even though the names and time at which the sales are made are not specifically alleged.

6. Besides this, in other grounds of the appellant’s motion for a new trial he complains of the charge of the court because the court did not charge that it was necessary to prove other sales than those specifically alleged in the indictment under that part of the indictment which charges that other sales were made to parties unknown to the grand jury. It appears from this that the appellant took both sides of the issue in the court below, but does not present these matters by his brief now.

7. Another bill of exception complains of the -action of the’ court in permitting the witness Bryant to testify that one of the packages that he delivered to the appellant, among other deliveries shown by his testimony, was marked “Beer,” because the indictment does not charge the appellant with selling beer, and there was no proof that he ever sold 'beer, and that this testimony is immaterial and irrelevant. The court allowed this bill with the explanation that the witness’ testimony showed that he saw the defendant sign by his mark at the express company’s office for this cask of beer, and that the ordinary weight of a case of whisky was 50 pounds, and the ordinary weight of a cask of whisky was 250 pounds. It seems that the idea of the court was that, while this cask was marked beer, the testimony tended to show that it was whisky. Whether this is the case or not, it is our opinion that there was no error in admitting the testimony which would authorize this court to reverse the case.

' We deem it unnecessary to discuss any of the other questions raised by the appellant. They have all been considered, and none of them would authorize us to reverse this judgment.

The judgment is therefore in all things affirmed.

On Motion for Rehearing.

The appellant has filed a motion for rehearing, and has recently also filed a supplemental motion. He presents but one question, and that is he claims that this court erred in not holding that the lower court erred in admitting the entries from the books and records of the “Pacific” Express Company in evidence. He means “American Express,” instead of “Pacific.” Pie vigorously contends that this evidence was hearsay, and cites in both the original and supplemental motion for rehearing authorities which he claims sustain his contention. We will briefly restate in substance what the record shows about this matter.

Unquestionably the evidence shows that the books and records admitted in evidence were the records and books of the American Express Company, which were kept by it at Bonham, Tex., for the period of time for the months of September, October, and November, 1910. There can be no question as to the identity of these books and papers. The proof further showed that each of these packages which were received at this office of the express company was addressed to the appellant as the consignee thereof; that he actually received and had them hauled from the express company’s office by express company agents and others to his place of business; that each of these packages were marked “intoxicating liquor,” and he is shown to have signed a receipt for each of them upon the paper or book, as the case may be, where the entry of the several items was made. The act of the Legislature of April 18, 1905 (Acts 1905, p. 379), expressly requires that each person who shall place or have placed any package of whatever nature containing any intoxicating liquor with any express company for shipment to any point in any prohibition territory where the sale of intoxicating liquors has been prohibited shall place in a conspicuous place on such package the name of the consignor, and' consignee, and the words “intoxicating liquors” in plain letters. And provides that any one who shall violate this section shall be guilty of a misdemeanor, and subject to the punishment prescribed. Also, that when any express company shall receive any package of whatsoever nature, whether from a point within or without this state, containing any intoxicating liquors for transportation to any point within any prohibition territory, such express company ,shall forthwith transport such liquor to its place of destination, and, upon its arrival, there shall be entered in a book to be kept for that purpose the names of the consignor and the consignee, and the exact date of the arrival of such package, and provides that, if any express company shall violate said law, it shall be liable to a penalty of $100 for each infraction thereof. In the emergency clause of this act it is recited as a reason why it should go into immediate effect that the will of the people is thwarted and the local option laws of the state are to a great extent made ineffective because the offices of the express companies are constantly filled with intoxicating liquors which are kept indefinitely awaiting the convenience of the consignee.

This act makes the entries on said packages and in the books and papers of the express companies at least quasi public records, and we believe that because thereof they would be admissible in evidence in a case of this character by proof that they were the records of such matters kept by the company at the office of the company and were identified as such records and papers so kept. Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791; James v. State, 138 S. W. 614. In this case, however, the unquestioned proof clearly shows that the appellant received each of these packages, and that on the books or sheets so identified and introduced he signed his name thereto as receipting therefor. So that it is the same in effect as if he had actually signed a separate receipt on a separate piece of paper, and that had been identified and proven up as signed by him and introduced as a receipt therefor. It would make no difference in such a case who wrote the receipt and whether or not the party who wrote it knew anything at all about the contents of the packages he was receiving. Certainly having receipted for each of these packages as shown by these books and papers introduced would not make them inadmissible, because the party who made the entries was not produced and did not testify that he made correct entries and knew the contents of the packages. It is true the appellant might not be concluded by his receipts that each of the packages contained intoxicating liquors. He perhaps would be permitted to show, if he could, that none of the packages contained intoxicating liquors. Wd are not discussing and have not discussed the effect of this evidence, but we are simply discussing its admissibility in evidence. What effect the jury should give thereto was left to them as it should properly be. ,,

It is our opinion that the cases cited and relied upon by appellant have no application to the question raised in this case. Those cases refer to the books of some other with which the party objecting had nothing to do, and was not a party thereto. In this case he was directly a party to each of these shipments. He was expressly stated in the face of each to be the consignee. He actually received them and had them hauled and delivered to his place of business, and the books and papers introduced were in effect his receipt therefor. We think unquestionably the court did not err in admitting the testimony under the facts and circumstances of this case. 1 Greenl. on Ev. (15th Ed.) § 212.

The appellant’s motion for rehearing will therefore be overruled.

DAVIDSON, P. J., absent  