Ward v. State , 55 Tex. Crim. 362 ( 1909 )

BROOKS, Judge.

Appellant was convicted of violating the Sunday law, and his punishment assessed at a fine of $200.

Bill of exceptions No. 1, shows that the State was permitted to show by the deputy county clerk of Dallas County, who identified a certain book he had as a stub-book, containing the stubs from which liquor dealers’ licenses are taken, that said book is kept in his own handwriting, and that he has no personal recollection of even issuing and delivering to this defendant a license as a retail liquor dealer under the Act of the Thirtieth Legislature, or of making said stub,, and that the said stub is not a record but an office memorandum. And be it further remembered that there was no evidence of the loss or destruction of any license so issued to the defendant, nor of notice to the defendant or his attorneys to produce same. Whereupon the State offered in evidence a stub from said stub-book, as follows:

“Retail (Liquor) Dealers License.

(Individual)

For the Sale of Spirituous, Vinous or Malt Liquors and Medicated Bitters.

No. 218.

Dallas County, Texas.

Issued to J. W. Ward,

for the sale of Spirituous, Vinous and Malt Liquors and Medicated Bitters in quantities of one gallon and less than one gallon to be drunk on the premises.

At 153 Main Street, Dallas County, Texas.

Date, Aug. 2, 1907.

State Tax.....$375.00

County Tax.....$187.60

City Tax......$......

License expires July 31, 1908.”

The above bill of exceptions was allowed with this qualification: “Said witness, Whitley, testified that this particular stub introduced in ' evidence was in his own handwriting. That the entry on the stub was made at the same time the license was issued. That all the liquor dealers in Dallas County procured license under the Baskin-McGregor law about the same time, and that he had no independent recollection of issuing a license to J. W. Ward. That the stub-book was kept by the county clerk for the clerk’s convenience to show what licenses had been issued. No other records of licenses were kept, and that as he understood the law the stub-book was not required to be kept by the clerk. Afterwards the defendant on cross-examination admitted he had a liquor license covering the period of prosecution.” Clearly in the light of the explanation of the court, and the admission of the defendant, there could have been no error in the ruling thereof.

Bill of exceptions Ho. 2 shows that defendant requested the court to give the following charge: “You are instructed that in this case the defendant has introduced testimony of the incorporation and chartering of the ‘Down Town Athletic and Literary Club/ and you are further instructed that unless the State has proved beyond a reasonable doubt that said ‘Down Town Athletic and Literary Club’ is a mere subterfuge, and has further proved beyond a reasonable doubt that said business on the second floor of 153 Main Street was on August 18, 1907, the exclusive business of J. W. Ward and a part of his licensed business on the first floor, you will acquit the defendant. And the burden of proof is upon the State to establish said facts beyond a reasonable doubt. And unless you so believe from the evidence beyond a reasonable doubt you will acquit the defendant.” In this connection the court charged the jury as follows: “You are further instructed that, if you believe from the evidence or have a reasonable doubt thereof that the house or place alleged to have been open or kept open between the hours of midnight Saturday, August 17, 1907, and five o’clock a. m. of the following Monday, August 19, 1907, was at said time used as a bona fide club organized for the purpose of the support' and promotion of a literary undertaking providing literature for its members, and the promotion of athletic arts among its members and that said club was not a sham or subterfuge for the purpose of evading the Sunday law, then you will acquit the defendant.” This charge certainly covered all that appellant could ask, to say the least of it. We think the evidence in this case scarcely warranted any charge of this character. Appellant owned the saloon and was running the upstairs, according to the evidence, in open violation of the law on Sunday, under the patent subterfuge of a literary club. The court very properly terms the defense a “sham;” and such a thin disguise and wilful violation of the law scarcely requires a charge of any character. However, the court covered appellant’s special charge in the main charge.

Appellant asked the court to give the following special charge: “If you should believe beyond a reasonable doubt that the defendant J. W. Ward was conducting a separate and distinct bar and place of business on the second story of said building without a separate license therefor, he could not be convicted in this case.” There is no evidence that it was a separate bar, hence the charge was not required.

The other charges of appellant as far as any of them were pertinent, were covered in the main charge of the court. The evidence in this case clearly supports the verdict of "the jury. Appellant, in order to evade the law, had charge of the building and organized what he called a club, but the whole testimony shows that he had exclusive control of the premises. The jury was amply warranted in their verdict, and the judgment is in all things affirmed.

[Rehearing Denied March 17, 1909.—Reporter.]

Affirmed.