Gremillion v. State , 131 Tex. Crim. 583 ( 1936 )

CHRISTIAN, Judge.

Conviction for a misdemeanor; the punishment assessed at a fine of $100.

The prosecution proceeded under Acts 1935, 44th Legislature, Second Called Session, chap. 467, art. 1, sec. 3. Said act denounces the operation of an open saloon, which is defined therein as follows:

“The term ‘open saloon,’ as used in this Act, means any place where any intoxicants whatever, manufactured in whole or in part by means of the process of distillation, or any liquor composed or compounded in part of distilled spirits, is sold or offered for sale for beverage purposes by the drink or in broken or unsealed containers, or any place where any such liquors are sold or offered for sale for human consumption on the premises where sold.”

Omitting the formal parts, the third counts of the complaint and information read as follows:

“M. J. Gremillion did then and there operate and assist in operating an open saloon, and was then and there directly interested and indirectly interested in the operation of an open saloon, on the premises of the said M. J. Gremillion, said premises being then and there a place where intoxicants manufactured in whole and in part, by means of the process of distillation, and liquor composed and compounded in part or distilled spirits, was sold and offered for sale for beverage purposes by the drink, for human consumption on said premises.”

Appellant contends that the information and complaint are fatally defective in failing to allege that appellant had done the acts denounced by the statute. In short, appellant contends that merely the conclusions of the pleader are set forth. We think it is manifest that the offense is sufficiently charged.

Appellant insists that the evidence is insufficient to sustain the averment that he operated an open saloon. It is his position that proof of two sales of whisky is not sufficient to bring him within the purview of the statute. Appellant operated the Southern Grill in the City of Houston, where he served meals. On the 11th of January, 1936, inspectors for the Liquor Control Board went to appellant’s place of business. According to the testimony it was not their purpose to make an inspection at the time; but they entered solely for the purpose of eating dinner. As they seated themselves at a table they observed a bar. Appellant was behind the bar, serving drinks. In said place of business a liquor menu was exhibited, showing that appellant was offering for sale whisky and gin by the drink. Other drinks were also shown on the menu. The inspectors ordered some whisky, whch was promptly served them in glasses by an employee of appellant. They testified that they saw the drinks procured from behind the bar. After finishing their dinner they went behind the bar and secured several bottles of whisky. Appellant stated to one of the inspectors that he had to sell whisky in order to páy expenses. We deem the evidence sufficient.

We are unable to agree with appellant’s contention that the inspectors were accomplice witnesses. According to their testimony, they did not go into appellant’s place of business for the purpose of buying whisky. When they entered appellant was already violating the law, in that he was operating an open saloon. The inspectors merely took steps to detect the crime. They did not originate or initiate it. We quote from Bush v. State, 151 S. W., 554, as follows:

“There is a line of cases which holds that where an officer or other parties understand-or are led to believe that a violation of the law is in contemplation, and take steps to detect that crime, or get evidence by which the guilty parties may be punished, he would not be an accomplice, but in such cases he is not an original party to the bringing about the crime and is not guilty of originating or initiating it. In that character of case his connection with it is after the inception of the crime and after it has been determned upon, and he only then gets into it as a detective or for the purpose of arresting the party and bringing him to punishment.”

We deem it unnecessary to determine whether the inspectors had the right to go behind the bar and seize appellant’s whisky. It was undisputed that appellant sold whisky by the drink for consumption on the premises on the occasion in question. That he was advertising same for sale by the drink was evidenced by the menu card to which we have referred. The State introduced in evidence, without objection, appellant’s declaration to the effect that he was selling whisky on said premises in order to pay expenses. These facts were undisputed, and showed beyond question that appellant was operating an open saloon in violation of the law. Appellant received the minimum penalty. Under the circumstances, if it should be conceded that proof of the fact of finding whisky behind the bar should not have been admitted — and this is not conceded — its admission would constitute harmless error.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.