Koenig v. State , 33 Tex. Crim. 367 ( 1894 )

HURT, PRESIDING- Judge.

By indictment presented in the District Court, appellant was charged with playing cards at a house for retailing spirituous liquors. Before he was arrested the indictment was, by order of the district judge, transferred to the County Court. Appellant, having been arrested under process issuing from the County Court, was tried in that court and convicted. He moved to quash uie the indictment, on the ground that the entry on the minutes'of the District Court showed that he was charged with playing cards in a public place, while the offense named in the indictment itself is playing a game with cards at a house for retailing spirituous liquors. The matter presents simply a question of identifying the indictment,- and the names of the parties, and the proper number of the bill being stated, there was no error in refusing to quash.

By plea to the jurisdiction appellant urged, that as the offense was committed in the incorporated city of Cuero, and there was a justice of the peace in said city, the cause should have been transferred to such justice for trial, and that the County Court had no jurisdiction to try it; and in support of this contention he cites article 436, Code of Criminal Procedure. The decisions of this court settle this question. The district judge is not charged with judicial knowledge that the offense was committed in an incorporated town or city — that fact not being alleged in the indictment — nor that a city, if named, is incorporated, nor that a justice resided in such city. When the district judge has transferred the cause to the County Court, and that court has jurisdiction to try for the offense named, the jurisdiction of that court to try the particular cause can not in any way be impeached. Patterson v. The State, 12 Texas Crim. App., 222; Temple v. The State, 15 Texas Crim. App., 304

A question of the disqualification of the county judge to try this case was raised by proper plea. The contention is that he, while county attorney, filed a complaint against certain parties, charging them with pursuing the occupation of selling spirituous, vinous, and malt liquors without first obtaining a license; that this was in the same building in which the offense charged in this indictment was committed, the question material in both cases being whether liquor was retailed; that the facts are identical, and identically the same question arises in both cases. There was no error in overruling the plea. That the same question of law arises, or the same character of facts are involved, in two prosecutions, does not disqualify a judge from sitting in one by reason of his having been county attorney in the other.

A serious and much-vexed question arises on the facts and the charge of the court in this case. The facts are undisputed. Appellant played a game of cards in the club room of a building known as “Turner Hall,” situated in Cuero, on the date named in the indictment. The building is occupied and controlled by the Cuero German Turnverein, a private corporation chartered under the general laws of the State. By the terms of its charter, the purposes of the association are expressed to be: “Mental, moral, and physical improvement of the stockholders, their families and others; to promote generally the diffusion of the knowledge of literature, the arts and sciences, and to encourage social and friendly intercourse.” Under the by-laws members are elected by ballot. Members have a right, with their families, to visit the hall, take part in all festivities of the association, and introduce strangers as guests. The name and residence of a guest must be entered on tbe guest book, with tbe name of tbe member introducing bim, wbo will be beld responsible for bis good conduct. A person wbo bas sojourned in Cuero thirty days can not be introduced as a guest unless be bas made application for membership. Tbe fee for membership is #10. In addition, an assessment of fifty cents per month from each member is levied to meet tbe expenses of tbe association and provide for tbe comfort and pleasure of tbe members. The employes in charge of the bar, or tbe messenger of tbe same, are positively forbidden to receive any money from others than members. Tbe management of tbe ball, bar, and grounds is under tbe director elected for that purpose. The capital stock of tbe association is fixed at #4000, divided into #10 shares. Such are tbe purposes and management of tbe association; as exhibited by its charter and by-laws. Tbe building we have mentioned consists of a large ball, a stage, and a club room in tbe basement. Tbe ball is used for theatricals, private parties, dancing, conventions, and lectures. Tbe best people of the community go there to listen and attend public and private dances and ice cream festivals. Hall rent is charged to professional troupes, and nominal rent to private parties. Tbe theatricals and conventions and tbe ball rent are tbe chief income of tbe association. Tbe club room contains all tbe fixtures and appliances of a first-class bar room — counter, glasses, ice-chest, billiard table, etc. A supply of spirituous, vinous, and malt liquors for tbe exclusive use of tbe members is kept,- and sold only to members by tbe drink, by tbe steward, at five and ten cents per drink, which is either paid in money or charged to tbe member and collected at the end of tbe month. Tbe money thus paid by members is paid by tbe steward into tbe general fund of the association, but is chiefly used in replenishing the stock of liquors. Tbe bar is run at a loss, it not being tbe intention to run tbe bar for profit or to conduct tbe same as a business or calling, but simply for tbe convenience of members. The steward bas strict instructions from tbe directors not to sell liquors to any stranger for any consideration. Such instructions are rigidly observed, but sometimes members buy liquor at tbe bar and take it away on a waiter, andbthe steward does not know what becomes of tbe liquor; and it may thus happen that at times strangers get liquors, but they do not buy or purchase them. Tbe liquors are principally sold to members on Sunday, and at night on week days. More is sold on Sunday than on any other day. Tbe billiard table is used only by members, and no fees are charged, and no betting thereon. Other tables are in tbe club room, and are used by members only for playing social games of cards, and no table fees are charged. Tbe club room is also supplied with tbe papers, periodicals, and magazines of tbe day, and some members resort there to read and converse only. Tbe room is orderly and quiet, and is visited by members, wbo are tbe leading and best people of Cuero. The windows of tbe building are stained, and no one on the outside can see what is going on inside. The doors to the club room are generally closed during the performances or public meetings, and it is a private place, inasmuch as no stranger is admitted unless he lives outside the city and is introduced as a guest of a member, and then such stranger can not buy any liquor at the bar of the club. To the east of the building is a lawn, on which the association has a gymnasium. The lawn is often used for church fairs and festivals. During these festivals the doors of the club room are kept closed, and no one except a member has access to it. But the members do not stop playing cards in the club room while the festivals are going-on. There are 75 or 100 members. The association pays no occupation tax or liquor tax, either to the State, county, or city, but does pay the United States revenue tax as liquor dealer. The liquors and bar fixtures are all the property of the association. The association has been conducted as above since 1879.

This is the uncontradicted testimony of the steward. The secretary of the association corroborated in every respect the testimony of the steward, and further testified, that the association was not organized to evade the license laws of the State. It is' a social club, whose members may indulge in a social glass without resort to bar rooms. The liquors are not kept for the purpose of obtaining revenue, and the payments made by members are put into the general fund. The so-called “bar” is run at an absolute loss, the loss for the past year being about $500. The members carry out, in letter and spirit, the object of the corporation as stated in the charter.

These being the facts, the court charged the jury, that it “makes no difference, under the law, whether the liquors were retailed in a private club room, in an open saloon, or in a private residence, and regardless of the persons to whom or how the spirituous liquors were sold — whether to members only, or to the public generally.” And again, “If you believe that the Cuero German Turnverein is an incorporated institution under the laws of this State, and in that case, if so, it becomes an artificial person, and can own and hold, buy and sell, property as individuals; and if you further believe * * * that such Turnverein kept and dispensed spirituous liquors, through an agent, janitor, or a steward, to individual persons, and that said liquors were paid for in money or charged to the individuals, then the acts of the body corporate, through its agent, janitor, or steward, and the individual, in dispensing and obtaining the liquors, constitute a sale and purchase under our law, regardless of whether the individual is a member of the incorporated body or not.” The charge was excepted to, on the ground that it was erroneous in defining a house for retailing spirituous liquors. The effect of the court’s charge was to tell the jury to convict appellant on the facts in evidence, and the question for us to determine is, do the acts show a violation of the statute? The playing at a game of cards being an admitted fact, the question is narrowed to this: "Was the club room in question a house for retailing spirituous liquors within the meaning of article 355, Penal Code? That article reads: “If any person shall play at any game with cards at any house for retailing spirituous liquors, storehouse, tavern, inn, or any other public house, or in any street, highway, or other public place, * * * he shall be fined.” * * * The next succeeding article is explanatory, and reads: “All houses commonly known as public, and all gaming houses, are included within the meaning of the preceding article. Any room attached to such public house and commonly used for gaming is also included, whether the same be kept closed or open. A private room of an inn or tavern is not within the meaning of public places, unless such room is commonly used for gaming; nor is a private business office or a private residence to be construed as within the meaning of the public house or place; provided, said private residence shall not be a house for retailing spirituous liquors.”

We have no decision in Texas upon the question, nor do we find any decisions of other States directly in point. There is a line of decisions, however, which serves to illustrate and throw light upon the subject. In Maryland the statute (Laws 1866, chapter 66) provides, that “No person in this State shall sell, dispose of * * * any spirituous liquors * * * or beer * * * on the Sabbath day,” * * and a penalty was fixed. The officers of a corporation known as the Concordia were indicted for selling beer on Sunday. The purpose and management of the Concordia were in all respects the same as that of the Turnverein in this case. It was admitted that one Springer, a member, at the time and place alleged, called for a glass of beer in the usual way, was served by the steward, drank it then and there, and paid five cents therefor, that being the price fixed by the corporation. The Supreme Court of that State say: “We are all of the opinion that the transaction was not a sale of beer to Springer within the intent and meaning of the statute. * * * The act has no application to a case like the present.” “The license laws which forbid the sale or barter of spirituous or fermented liquors without a license have never been construed as applicable to a social club. * * * We think it clear that no license is required, for the reason that such a transaction is not a sale within the meaning of the license laws. Such a transaction is not a barter or sale in the way of trade.” Seim v. The State, 55 Md., 566.

In Massachusetts the defendant was charged with keeping and maintaining a common nuisance, to wit, “a tenement used for the illegal keeping and illegal sale of intoxicating liquors.” The Supreme Court said: “If the liquors really belonged to the members of the club, and had been previously purchased by them or on their account of some person other than the defendant, and if be merely kept the liquors for them, and to be divided among them according to a previously arranged system, these facts would not justify the jury in finding that he kept and maintained a nuisance within the meaning of the statute under which he is indicted. There would be neither selling nor keeping for sale.” “If the whole arrangement was a mere evasion, and the substance of the transaction was a lending of money to the defendant, that he might buy intoxicating liquors to be afterwards sold and charged to the associates, or if he was authorized to sell, or did sell, or keep, any of the liquors, with the intent to sell to any persons not members of the club, he might well be convicted. This, however, would be a question not of law, but of fact.” The Commonwealth v. Smith, 102 Mass., 147.

In the case of The Commonwealth v. Pomphret, the complaint was for keeping liquors with intent unlawfully to sell the same. The trial judge charged as follows: “If the association of persons, of whom defendant was one, owned a quantity of liquors, which they kept under an arrangement to furnish them in such quantities as might be required, to be drank on the premises, to such members of the association as should call for them, in return for checks which represented certain values, and which were obtained from the defendant, as a steward of the association, and were paid for, when obtained, at the price they purported to represent, and defendant was one of the persons keeping these liquors for said purpose, and was personally in charge of them, furnishing them in return for said checks, the jury may find that said liquors were kept by him for unlawful sale.” The Supreme Court said: “One inquiry always is, whether the organization is bona fide a club with limited membership, into which admission can not be obtained by any person at his pleasure, and in which the property is actually owned in common. * * * Graff v. Evans, 8 Q. B., Div. 373, was decided on the ground that there was no transfer of a special interest, as all members of a club were owners in common, and that as the club was a bona fide club, the furnishing of liquors to a member was not a sale within the meaning of the English licensing act. * * * The ruling and instruction in this case seemed to us to assume that this was a bona fide club, that the liquors were owned in common by the members, that they were furnished only to members, and that they were kept by the defendant as one of the members and as steward of the association. It does not appear in the exceptions in what manner new members were admitted, except that they paid an admission fee of $1, but we can not assume that auy person could join the association at his pleasure; and the ruling and the instructions are not put upon the ground that there was evidence that this was an association open to anybody at a price. On the assumptions upon which we understand the instructions to proceed, we think that, under tbe decision in The Commonwealth v. Smith, it was not competent for the jury to find the defendant guilty.” 137 Mass., 564.

In a later case in the same State, the instruction of the trial judge was to the effect that if the club was a bona fide club, and the liquors owned in common by the members, and the members, on receiving liquors, gave money in return, it would not be a sale within the meaning of the statute; but if this is a mere device to cheat the government out of its license fees, and prevent the due execution of the law, it is not a protection, and the defendant does not act with impunity. The Supreme Court held that the charge correctly presented the law. The Commonwealth v. Ewig, 145 Mass., 119.

In a case before the Supreme Court of New York, the principles enunciated in the foregoing cases were approved, and the cases, with many others to the same effect, were cited. However, in the case before the court, the facts did not bring it within the rule. The ball given by the club was not confined to the members, inasmuch as the tickets were sold to any one who would buy, and the liquors were indiscriminately sold to persons admitted, and desiring them. “The Academy of Music,” said the court, “ceased to be a private club house for the period during which the ball continued. The entrance to which, and privileges therein, were not confined to its members and their guests in the proper and legal sense of that term.” Circle Francais de L’Harmonie v. French, 44 Hun, 123.

In Yirginia a statute (Acts 1889-90, p. 242, et seq.) provided, that “no person, corporation, company, firm, partnership, or association, shall, within the limits of this State, engage in the business, sell, or offer to sell, ardent spirits,” without first having obtained a license. It was further provided, that “any person, club, or corporation desiring to carry on the business of a retail liquor merchant and also that of a bar room, shall obtain a separate license for each.” The Piedmont Club was indicted for selling liquor without license. It was conceded that it was a bona fide club, organized for the purposes named in its charter, and not as a mere device resorted to as a means of evading the law. None but members or invited guests are entitled to the privileges of the club, and no person not a member is permitted to pay for either food or drink. The money received for the liquors goes into the general fund, which is again used to replenish the stock. No profit is made on the liquor. The Supreme Court said: “What is complained of as an unlawful .selling is nothing more than an equitable mode by which the cost of the liquor used by members is divided among them in proportion to the quantity that each one uses. * * If there can be said to have been, in the strictest or most technical sense, a sale at all, it was not such a sale as the statute contemplates. The defendant club, in dispensing liquors to or at the expense of its members, was not engaged in carrying on the business of selling liquor.’’ Piedmont Club v. The Commonwealth, 12 So. E. Rep., 963. In a recent case tbe Supreme Court of South Carolina. reviewed tbe above cases, and approved them. The State v. McMaster, 14 So. E. Rep., 290.

To tbe same effect are tbe cases of Tennessee Club v. Dwyer, 11 Lea, 452; Barden v. Montana Club, 25 Pacific Reporter, 1042. From these cases tbe principle is deducible that tbe distribution of liquors by a bona fide club among its members is not a sale, within tbe inhibition of a liquor law, even though tbe person receiving tbe liquor give money in return for it. It is otherwise, however, where such club is simply a device resorted to as a means of evading tbe statute. See McMaster’s case, supra; Am. and Eng. Encyc. of Law, title, “Intoxicating Liquor.”

Tbe case of Rickart v. The People, 79 Illinois, 85, is often cited to support tbe converse of tbe above proposition. Tbe facts there made a case totally dissimilar to those we have reviewed and tbe one at bar. Tbe members did not own tbe liquors, although they claimed to own them. Tbe money received went to tbe pretended treasurer, who rendered no account to tbe members. Any one could become a member by paying a dollar. Tbe court correctly held that tbe jury were warranted in finding it a mere device to evade tbe law. Tbe case does not conflict with those above. Tbe case of Marmont v. The State, 48 Indiana, 21, directly conflicts with tbe cases we have reviewed. It was there distinctly held that tbe delivery by tbe club, through its agent, of beer, which was tbe common property of tbe society, to a member of tbe society, upon credit or for cash, and which thereby became tbe separate property of tbe member, was a sale, within tbe meaning of tbe statute of that State. So, in Alabama, it was held that such a transaction was a sale. Martin v. The State, 59 Ala., 34. To the same effect seems tbe opinion in tbe case of Chesapeake Club v. The State, 63 Maryland, 446, by Alvey, C. J., and Judges Stone and Irving concurring. In tbe same case, however, Judge Bryan delivered an opinion, concurred in by Judges Yellott and Bobinson, reasserting tbe doctrine in Seim v. The State, supra, and bolding, that “if, in this case, tbe whisky and beer which tbe appellant was charged with keeping was kept for tbe purpose of furnishing to its members under tbe circumstances above stated, there would be no violation of tbe statute.” The statute referred to prohibited any person, company, or corporation or association from depositing, or having in possession, any liquors, with intent to sell tbe same, or give away tbe same. Tbe local option law was in force where tbe offense was alleged to have been committed.' Tbe circumstances of tbe transaction in question were not unlike tbe one before this court in any essential particular.

¥e are of tbe opinion that, upon authority and reason, it must be held, under tbe facts of tbe present case, tbe transaction was not a sale of tbe liquor in the way of. trade, and that neither tbe association, its members, nor its steward were engaged in tbe occupation of selling liquors. If this be true, was the club room a place for retailing liquors? “To retail,” in this connection must mean “to sell in small quantities.” “A house for retailing” must mean “a house where the liquors are sold in small quantities in the way of trade.” Again, our statutes regulating the sale of spirituous liquors recognize the distinction between selling liquors at retail and otherwise as an occupation. It is very clear, both from the decisions we have cited and our statutes, that the club, its members, or steward, are not engaged -in the occupation of selling liquors in quantities less than one quart. In the case made by the facts, it is equally clear that no question of evasion of the laws, or of a device to conceal the real objects, purposes, and acts of the association, arises in this case. The dispensing of liquors to the members is but incidental, and for the purpose of adding to the pleasure and comfort of the members^ Again, reference to the statutes shows that the places and houses named, and those intended to be embraced, are all “public.” Thestatute contemplates public houses and public places. "Was the club room of the association either? None but members and their guests could enter there or share its privileges. So long as this rule was enforced it was not public, and the evidence shows that the rule was strictly observed. We conclude that the evidence does not show that defendant played cards at a house for retailing spirituous liquors, within the meaning of the statute.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.