DocketNumber: No. 4420.
Citation Numbers: 17 S.W. 133, 55 Tex. Crim. 431
Judges: RAMSEY, JUDGE.
Filed Date: 3/3/1909
Status: Precedential
Modified Date: 1/13/2023
Appellant was charged in the County Court of Grayson County with the offense of keeping a disorderly house; that is, a house in which spirituous, vinous and malt liquors were sold and kept for sale without a license first having been obtained under the law to retail such liquors.
In view of the disposition we are to make of the case, we will not discuss but one question, and that is the sufficiency of the evidence to sustain the conviction. It was shown that appellant obtained no license in Grayson County to retail spirituous, vinous and malt liquors. It was shown, perhaps with sufficient certainty, that appellant was in such relation and control of the house as to bring him under the terms of the statute as the owner, lessee or tenant thereof. There was no evidence from any source that he had at any time, since the act under which he was prosecuted went into effect, ever sold or offered for sale intoxicating liquors. It is not shown nor is there any evidence tending to show that he at any time since the act in question went into effect ever had in his possession any intoxicating liquors. There was no evidence that he had an internal revenue license as a retail liquor dealer, nor was the description of the building, its furnishings, furniture and equipment, such as would indicate particularly that he was engaged in the business or any fact, in this respect, inconsistent with his claim that it was a restaurant. There was no evidence of any rowdyism, noise, drunkenness or any of the ordinary conduct to be expected to be carried on about a place of business of this kind. The proof upon which the conviction rests is that of general reputation and that alone, and this proof is very fragmentary and slight. For instance, the witness J.B. Howard, who was a deputy sheriff, testifies that he was unable to say which was the general reputation in Denison of the house in question. M.F. Kidd, another deputy sheriff, testified that he was unable to say what the reputation of the house was or whether it had the reputation of being a house in which intoxicating liquors were sold. J.C. Denton testified that lie was acquainted with the general reputation of the house in question, and that it had the reputation of being a place where whisky was sold. It seems that appellant's place of business was located at 325 Main Street, in Denison. J.W. Hendricks, who lived in Denison, and whose place of business was 411 Main Street, stated that he was not acquainted with nor could he testify as to what was the general reputation of the house or building in question. J.D. Knaur testified that he lived in Denison, and that the reputation of the house in question was that it was a place where whisky was sold. Such also was the testimony of H. Alexander, J.O. Jackson, and M.C. Johnson.
As to the character of the furniture in the building, the witness *Page 433 Howard testifies as follows: "There is a restaurant in the front of the building. There was a counter, wooden contrivance, shelf, counter and bench, twelve or fourteen feet long and about two feet wide. It was on the east side of the room. There was a shelf against the wall and a glass above it — a mirror, and there was a wooden box. It was a wooden box with a cover on it on top. It was at the south end of the shelf. I think there was a cash register on the shelf. It was on the shelf that was against the wall."
The charge of the court pertinently and aptly submitted the issue to the jury. In the fifth paragraph of the court's charge the jury were instructed as follows: "Evidence has been introduced before you with reference to the general reputation of the house in question. You are instructed that the general reputation of the house, as a disorderly house, if you believe that such general reputation is proved by the evidence beyond a reasonable doubt, will not warrant the conviction of the defendant on the charge contained in the indictment of keeping or being concerned in keeping such house as owner, lessee or tenant, but before the defendant can be convicted of keeping said house, if the same was a disorderly house, as the owner, lessee or tenant of same, the evidence must directly connect him with the keeping of said house as such owner, lessee or tenant." Evidently the learned trial judge must have acted with reference to and based his conclusion in overruling appellant's motion for a new trial upon the opinion of this tribunal in the case of Joliff v. State, 53. Texas Crim. Rep., 61,
For the reason that the evidence is, in our judgment, insufficient to sustain a conviction, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded. *Page 435