Spencer v. State

GRAVES, Judge.

The conviction is for the offense of selling beer in a dry area; punishment, a fine of $50.00.

Appellant raises the same question relative to the repugnancy contained in the complaint and information that is found in the case of Herman Bell v. State, our No. 21473, this day decided (Page 390 of this volume). In this cause there also appears- the allegation that appellant sold in a dry area “beer, an alcoholic beverage containing more than one-half of one per cent of alcohol by volume, same being an intoxicating liquor,” etc.

In the Bell case we held that such phrase: “same being an intoxicating liquor,” did not allege that this alleged sale of beer did not also denominate the same as liquor as such is defined in Art. 666-3a, P. C. That ruling- is here- adherred to, this phrase being but a generic term, and merely describing such beer as an intoxicant.

Appellant has reserved a bill of exceptions to the testimony of the county clerk who, after having testified to the different orders and election of 1911 that resulted in the County of Hall being declared a dry area, was then asked if any further election had been had changing such dry status of the county. Appellant objected to the witness answering the question on the ground that the minutes of the court would have been the best evidence of such a matter. The objection of the appellant was overruled, and the witness answered that there had been other elections held since 1911, but they had not changed the dry status of the county. While this answer may have been a conclusion and not the best evidence, it would probably be in a sense a shorthand rendition of what the records of such county would show. These records since 1911 to the time of trial were surely rather voluminous, and to have brought them in before the jury and have them examined would have been a useless consumption of time. This witness was the county clerk in whose custody these minutes were kept, and we think he, having examined these large and voluminous records, could give his conclusions as to whether or not there was shown in such books any election that permitted the sale of intoxicating liquors in Hall County since the year 1911.

Mr. Underhill on Criminal Evidence, (3d. Ed.), Sec. 98, says:

“To prevent the time of the court from being unduly occupied in the examination of numerous and bulky books of account and other writings to prove a single fact, the production of the writings may be dispensed with and a witness who has examined the documents may state orally the result of the examination which he has made out of court. This rule is applicable only where the books are multifarious and voluminous, and the jury would find it difficult if not impossible to ascertain anything material from their inspection.”

We do not think any error is presented by this record, and judgment will therefore be affirmed.