Appellant was prosecuted under complaint and
information containing two counts, one charging him with soliciting and taking orders for intoxicating liquors, the other for keeping and maintaining a cold storage, a place where intoxicating liquors were kept for others.
Appellant waived a jury and submitted his case to the court, and he was found guilty on both counts. The validity of both of these laws has heretofore been passed on by this court, and both have been sustained. (Edmanson v. State, 64 Tex. Crim. 413, 142 S.W. Rep., 887, and Ex parte Flake, 67 Tex. Crim. 216, 149 S.W. Rep., 146.) After a careful review of this question we see no reason to change our views as to the validity of these laws. So the only question presented by this record is, does the evidence show that appellant has been guilty of violating these laws.
The evidence would show that when prohibition was adopted in Marshall some members of the Elks' Lodge at that place organized an auxiliary society, the purpose of which was to obtain and keep for their own use intoxicating liquors. A plan was adopted which, it may be said, in behalf of those joining this auxiliary society, they did not think would be in violation of the law, but their good faith in this matter can not avail them, for if they were mistaken it would be a mistake of law and not a mistake of fact. They employed attorneys to devise for them a scheme or plan whereby they could obtain and keep intoxicating liquors on hand to be used by them in such quantities and at such times as they desired. But it appears to us that in an effort to evade the law, instead of doing so, a plan was devised that would be in violation of almost every law we have regulating and prohibiting the sale of intoxicating liquors, and if this scheme could be lawfully carried out our prohibitory laws instead of being denominated prohibitory, should be labeled "laws to enable liquor to be sold without any regulation and without paying any tax."
The society was organized, a place rented, bar-room fixtures installed, a porter employed, who was to fill the place of bar-tender in the ordinary saloon. No orders were solicited in words, but they agreed amongst themselves they would place a locked box on the end of the bar counter, and each member who desired intoxicating liquor should write his name on a slip of paper, place in an envelope the amount of money he desired to expend that week for liquors, and drop the envelope in the box. It was first stipulated that a secretary should be elected, who would carry the key to this box, and would take out the name, money, etc., and order the liquors. When it was received by the society the secretary would then issue to him a card entitling him to the amount of liquor he had ordered, to be drunk when he pleased during that week. The evidence would show that only beer has been ordered, and if a man placed in a dollar, he would get a ticket entitling him to twenty glasses of beer, and so on, the beer always being calculated at 5 cents a glass, the same as the price at a regular saloon. The secretary was to take the money, figure the cost of rent, ice, etc., for one week, deduct this amount, and
then order beer in bulk with the remainder of the money, and when received, keep it on ice, and have it dealt out to the holder of the ticket by the porter when called for. It is claimed if the beer did not hold out a man lost that much of his ticket, but if there was more beer than the ticket called for, then it was drunk indiscriminately by the members of the society free. In this wise a regular beer saloon was maintained by the members of the society and they could get their ice cold beer on tap at any and all times. However, the evidence would show that no secretary was elected, and the first year it was operated Mr. Clark, who was an officer of the lodge, attended to all the duties supposed to be performed by the secretary of the society; carried the key to the box, once weekly took out the money, calculated the expense, and then ordered beer with the remainder; issued tickets to those contributing the money, and had the porter keep it on ice and serve the members. When he ceased to be an officer appellant took over the business for one week and attended to it, and since then it has been understood and agreed that some member of the society should do so weekly. The only pay or consideration that he was to or would receive would be that if he attended to it one week, some other member would voluntarily attend to the business the next week. But each and every one was informed that if he desired intoxicating liquors it was only necessary to place the money in the box, with his name, and it would be forthcoming the next week. The placing of this box on the bar counter, with the understanding that the beer would be ordered, was but an invitation to do so, as much as if express personal solicitation had been made. It was an attempted evasion of the law, while the very thing to be done was what the law prohibited. He took the orders for beer out of the box, ordered the beer, and had it delivered to the person giving the order. He violated not only the express letter of the law, but its spirit and intent as well.
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Appellant was prosecuted under complaint and
information containing two counts, one charging him with soliciting and taking orders for intoxicating liquors, the other for keeping and maintaining a cold storage, a place where intoxicating liquors were kept for others.
Appellant waived a jury and submitted his case to the court, and he was found guilty on both counts. The validity of both of these laws has heretofore been passed on by this court, and both have been sustained. (Edmanson v. State, 64 Tex. Crim. 413, 142 S.W. Rep., 887, and Ex parte Flake, 67 Tex. Crim. 216, 149 S.W. Rep., 146.) After a careful review of this question we see no reason to change our views as to the validity of these laws. So the only question presented by this record is, does the evidence show that appellant has been guilty of violating these laws.
The evidence would show that when prohibition was adopted in Marshall some members of the Elks' Lodge at that place organized an auxiliary society, the purpose of which was to obtain and keep for their own use intoxicating liquors. A plan was adopted which, it may be said, in behalf of those joining this auxiliary society, they did not think would be in violation of the law, but their good faith in this matter can not avail them, for if they were mistaken it would be a mistake of law and not a mistake of fact. They employed attorneys to devise for them a scheme or plan whereby they could obtain and keep intoxicating liquors on hand to be used by them in such quantities and at such times as they desired. But it appears to us that in an effort to evade the law, instead of doing so, a plan was devised that would be in violation of almost every law we have regulating and prohibiting the sale of intoxicating liquors, and if this scheme could be lawfully carried out our prohibitory laws instead of being denominated prohibitory, should be labeled "laws to enable liquor to be sold without any regulation and without paying any tax."
The society was organized, a place rented, bar-room fixtures installed, a porter employed, who was to fill the place of bar-tender in the ordinary saloon. No orders were solicited in words, but they agreed amongst themselves they would place a locked box on the end of the bar counter, and each member who desired intoxicating liquor should write his name on a slip of paper, place in an envelope the amount of money he desired to expend that week for liquors, and drop the envelope in the box. It was first stipulated that a secretary should be elected, who would carry the key to this box, and would take out the name, money, etc., and order the liquors. When it was received by the society the secretary would then issue to him a card entitling him to the amount of liquor he had ordered, to be drunk when he pleased during that week. The evidence would show that only beer has been ordered, and if a man placed in a dollar, he would get a ticket entitling him to twenty glasses of beer, and so on, the beer always being calculated at 5 cents a glass, the same as the price at a regular saloon. The secretary was to take the money, figure the cost of rent, ice, etc., for one week, deduct this amount, and
then order beer in bulk with the remainder of the money, and when received, keep it on ice, and have it dealt out to the holder of the ticket by the porter when called for. It is claimed if the beer did not hold out a man lost that much of his ticket, but if there was more beer than the ticket called for, then it was drunk indiscriminately by the members of the society free. In this wise a regular beer saloon was maintained by the members of the society and they could get their ice cold beer on tap at any and all times. However, the evidence would show that no secretary was elected, and the first year it was operated Mr. Clark, who was an officer of the lodge, attended to all the duties supposed to be performed by the secretary of the society; carried the key to the box, once weekly took out the money, calculated the expense, and then ordered beer with the remainder; issued tickets to those contributing the money, and had the porter keep it on ice and serve the members. When he ceased to be an officer appellant took over the business for one week and attended to it, and since then it has been understood and agreed that some member of the society should do so weekly. The only pay or consideration that he was to or would receive would be that if he attended to it one week, some other member would voluntarily attend to the business the next week. But each and every one was informed that if he desired intoxicating liquors it was only necessary to place the money in the box, with his name, and it would be forthcoming the next week. The placing of this box on the bar counter, with the understanding that the beer would be ordered, was but an invitation to do so, as much as if express personal solicitation had been made. It was an attempted evasion of the law, while the very thing to be done was what the law prohibited. He took the orders for beer out of the box, ordered the beer, and had it delivered to the person giving the order. He violated not only the express letter of the law, but its spirit and intent as well.
Again he says, that taking a portion of the money they placed in the box, paying the rent and porter hire with it, buying the ice, etc., receiving the beer at the depot, having it hauled to the rented apartment, and there placed on ice, and kept for those contributing the money, would not render him guilty under the cold storage statute. He claims he did all this as an accommodation, but the facts show that he did so one week, with the understanding that some other member of the auxiliary society would do the same for him the next week, and another the week after, etc. We are of the opinion these acts violate both the spirit and letter of the cold storage statute. Ray Clark testified in behalf of appellant that he was with appellant when he opened the box, and he and Mr. Barnes made out a list of those who had placed money in the box, and the amount each had placed in there; that there was $26.50 taken out of the box by Mr. Barnes; that they took out $5 for rent, $1.80 for ice, $3.25 for express, $1 for gas, 35 cents for telephone, and 10 cents for exchange, leaving $15, and with this appellant ordered three half barrels of beer, and gave to the men contributing the money tickets calling
for a glass of beer for each 5 cents contributed. The express agent testified: "`I am the agent for the Wells Fargo Express Company in the City of Marshall. This company does a general express business and brings liquor to Marshall, and this is the liquor book which I have with me. It contains a complete record of our shipments. Yes, it shows shipments of liquor on the first day of April, 1913, and shows that Mr. George Barnes received a half barrel of beer from Palestine, Texas. On page 78 it shows that on the 2nd day of April Mr. George Barnes received two half barrels of beer from Palestine, and Mr. Barnes signed for both of these shipments. Yes, there is a shipment to Mr. Barnes on page 99, that is on April 4th. Two half barrels of beer from Palestine, Texas, on page 116, there is a shipment of two half barrels of beer from Palestine, Texas, it was signed for by Mr. Barnes, this was on April 5th." When Mr. Clark was asked about the other shipments shown to have been received by Mr. Barnes during this week, he testified: "No, the club did not order more than fifteen ($15) dollars worth of beer, the other that was ordered, the club had nothing whatever to do with, but it was dispensed with the same apparatus and the same porter. The first three half barrels cost us fifteen ($15) dollars or five ($5) dollars per half barrel and after that was gone the Elks Lodge donated the five ($5) dollars and bought another half barrel. There wasn't any tickets issued or used for this half barrel, and Mr. Barnes or the porter signed for it for the express company. I don't remember what time it was ordered, but it was some time during the week. Yes, the half barrel that the express company's books show, under date April 1st, was the beer which was ordered by telephone; on Wednesday we received two more half barrels and my recollection is that we wrote for this; we also received two more half barrels on Friday. I am pretty sure that was ordered by mail, that the two half barrels received on Saturday was ordered by mail also, but shipped at different times. Sometimes it was ordered shipped as we needed it and sometimes it is not. Yes, we issued tickets to those parties who deposited the money that week, and after the three half barrels or the fifteen ($15) dollars worth was used up by those parties who had tickets, then any one who came up there drank up the other beer that was ordered after that. It was on tap free to the members of the Elks Lodge, as the lodge had contributed the five ($5) dollars to pay for it. The other three half barrels that were received that week was ordered by individual members of the Elks Lodge, and the social club had nothing to do with that. I think that the club's beer had gave out and some of the members wanted some more beer, and a crowd got together and each contributed some money and ordered the other three half barrels. Mr. Barnes ordered it for them and he received it there at the lodge rooms." So it is seen that appellant not only ordered the beer for the society, but also three half barrels of beer besides the amount the $15 and $5 rent paid for. The record also discloses he had it carried to the apartment; had it there kept on ice, and dispensed by the porter.
Without going further into the facts, we think the court was justified in finding appellant guilty, and the judgment is affirmed.
Affirmed.
DAVIDSON, JUDGE, dissents.
ON REHEARING. May 20, 1914.