Opinion
No. 20917.
Delivered March 13, 1940.
Local Option Law — Evidence — Election — Affidavit of Publication of Order.
In prosecution for violation of the local option law, ex parte affidavit of the present publisher of a weekly newspaper, published in county, to prove publication of order of commissioners' court, declaring the result of local option election in the county, which information was gained by the publisher from the files of the paper, was inadmissible as "hearsay."
Appeal from County Court of Young County. Hon. E. M. Remington, Judge.
Appeal from conviction for violating the local option law; penalty, fine of $100.
Reversed and remanded.
The opinion states the case.
Jimmie Cunningham, of Graham, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State
The appeal is from the County Court of Young County, where appellant was convicted for a violation of the Local Option Law and assessed a fine of $100.00.
It appears from Bill of Exception No. 7 that during the trial of the case the State relied on the ex parte affidavit of George T. Spears, publisher of the Graham Leader, a weekly newspaper published at Graham, Young County, Texas, to prove the publication of the order of the commissioners' court declaring the result of the local option election in Young County on the 7th day of March, 1896. Apparently the certificate of the judge was not at that time placed in the minutes of the court showing the publication as required by law. The ex parte affidavit of Mr. Spears, the present publisher of the paper containing information gained by him from the files of the paper, was incorporated in the minutes of the court as of date June 7, 1939. Mr. Spears did not personally appear in court to testify but the clerk introduced the minutes of the court containing Spears' ex parte statement, and upon that the State relied to prove the publication required to put the Local Option Law into effect in Young County. The affidavit, as presented, was the hearsay statement of Mr. Spears and was inadmissible.
We find no merit in the other bills of exception in this case and they are accordingly overruled.
For the error in admitting the ex parte affidavit, the cause is reversed and remanded.