Layton v. State , 61 Tex. Crim. 507 ( 1911 )

At a former day of this term this cause was dismissed because of insufficient recognizance. Appellant has filed a motion to reinstate, filing a recognizance in accordance with the provisions of our Code, and we will discuss the case on its merits.

Appellant was tried in the County Court of Ellis County upon an indictment containing several counts; the first charging that he pursued the occupation of selling and offering for sale intoxicating liquors by taking orders therefor; the jury acquitted him of this count, and while a number of questions are raised under it, we will not discuss them, because of this acquittal. The other counts charged defendant with keeping a disorderly house, in that he kept a house in which spirituous, vinous and malt liquors were sold and kept for sale, without having obtained a license to sell such liquors.

Appellant filed a motion to quash the second and third counts in the indictment, charging him with keeping a disorderly house. The court did not err in overruling the motion. See Wimberly v. State, 53 Tex.Crim. Rep.; Fleming v. State, 28 Tex. Crim. 234; Mitchell v. State, 34 Tex.Crim. Rep..

A number of exceptions were reserved to the admissibility of evidence under the first count in the indictment, but, as before stated, as he was acquitted of this offense, it is useless to discuss them.

The court did not err in refusing to give the special charge requested by defendant, instructing the jury that the disorderly house statute did not apply to Ellis County. Said Act is a general law and applies to all counties in Texas whether local option is in force or not.

The court erred in permitting evidence of sales of intoxicating liquors by S.N. Creech and others, they not having been shown to be in the employ of defendant, and it was also error to prove that any person other than defendant purchased intoxicating liquors in Dallas. To have rendered this testimony admissible it would have been necessary to show that such persons were in the employ of, or had some business connection with this defendant. As we read this record, Creech and Allen had the house rented and owned the restaurant. It is true that two or three of the witnesses for the State, after testifying that Creech and Allen owned the restaurant and had control of the building, and that defendant was a mere employe, admitted that in the grand jury they had stated that defendant run or owned the business, and in the condition of the record we do not think the court erred in permitting leading questions to be asked these witnesses. They had testified to a certain state of facts in the grand jury room. The State placed them on the stand apparently believing they would still so testify; on the other hand, they proved to be excellent witnesses for the defendant, and the court did not err in permitting the State to prove by them what they had formerly testified. The State, however, failed to prove by any witness that defendant was the owner, lessee or occupant of the building, or that he was in control of same, except by indirect testimony that certain witnesses had formerly so testified. On the other hand, the defendant proved by the lease contract, and a number of witnesses that he was not the proprietor of the place, or had any connection therewith, otherwise than as a waiter or clerk. He might be indicted and prosecuted for the sale of liquor shown to have been made by him, but the evidence does not sustain the allegation that he was the keeper of a disorderly house.

Reversed and remanded.