Barry v. State

Court of Appeals of Texas

Barry v. State

212 S.W. 304, 1919 Tex. App. LEXIS 669

CourtCourt of Appeals of Texas

DecidedApril 26, 1919

DocketNo. 9169.

StatusPublished

Cited by4 cases

This text of 212 S.W. 304 (Barry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barry v. State, 212 S.W. 304, 1919 Tex. App. LEXIS 669 (Tex. Ct. App. 1919).

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Opinion

DUNKLIN, J.

A. J. Barry has appealed from an order of the judge of the district court granting a temporary writ of injunction restraining him from operating a moving picture show on Sunday in Eastland County.

The writ was granted in chambers on an ex parte hearing of a petition presented by the county attorney and duly verified by him. The following is a copy of the petition:

“G. G. Hazel, county attorney of said county, represents unto your honor that an information has been presented in the county court of East-land county, and is now pending therein, against A. J. Barry, the same being criminal cause No. 34L7, on the docket of said court, wherein said A. J. Barry is charged with operating a moving picture show on Sunday, February 23, A. D. 1919; that the said A. J. Barry will continue to carry on said business in violation of the law of the state, unless restrained by your honor; that your applicant is interested herein, he being a resident of said neighborhood, and county attorney of said county in which said business is being carried on by the said A. J. Barry. Wherefore your applicant prays that the said A. J. Barry be cited to appear and answer therein, and that your honor hear proof and make an order restraining the said A. J. Barry from carrying on said business on Sunday, or such other order in the premises as your honor may deem advisable.”

[1] By article 302 of the Penal Code of the state it is made a misdemeanor punishable by fine for any one to conduct on Sunday a place for public amusement where an admission fee is charged. But, while the petition contains the allegation that an information has been filed against Barry as a basis for criminal prosecution for the offense mentioned, there is no allegation that he has in fact been engaged in operating a moving picture show on Sunday and charging admission fees thereto-The allegation to the effect that Barry “will continue to carry on said business in violation of the law of the state unless restrained by your honor” ⅛ a mere conclusion of the pleader without stating the facts which would constitute such a violation of the criminal statute. The absence of any allegation of fact showing that Barry was conducting a moving picture show on Sunday in violation of the criminal statute would, of itself, render the petition for injunction wholly insufficient as a basis for the writ that was issued, even though it could be said that an injunction will lie to restrain a violation of that criminal statute.

[2] Furthermore, in the absence of some-special statutory authority therefor, it is a familiar rule that an injunction will not issue to restrain the commission of an act constituting a misdemeanor punishable under the-criminal statutes where no property rights of' the complainant are involved. York v. Ysaguairre, 31 Tex. Civ. App. 26, 71 S. W. 563; Manor Casino v. State, 34 S. W. 769; 14 R. C. L. pp. 376 to 380.

For the reasons indicated, the order made-by the district judge granting the temporary writ of injunction is vacated, and the writ issued thereunder annulled, and this judgment will be certified to the trial court for-observance.

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DUNKLIN, J.

A. J. Barry has appealed from an order of the judge of the district court granting a temporary writ of injunction restraining him from operating a moving picture show on Sunday in Eastland County.

The writ was granted in chambers on an ex parte hearing of a petition presented by the county attorney and duly verified by him. The following is a copy of the petition:

“G. G. Hazel, county attorney of said county, represents unto your honor that an information has been presented in the county court of East-land county, and is now pending therein, against A. J. Barry, the same being criminal cause No. 34L7, on the docket of said court, wherein said A. J. Barry is charged with operating a moving picture show on Sunday, February 23, A. D. 1919; that the said A. J. Barry will continue to carry on said business in violation of the law of the state, unless restrained by your honor; that your applicant is interested herein, he being a resident of said neighborhood, and county attorney of said county in which said business is being carried on by the said A. J. Barry. Wherefore your applicant prays that the said A. J. Barry be cited to appear and answer therein, and that your honor hear proof and make an order restraining the said A. J. Barry from carrying on said business on Sunday, or such other order in the premises as your honor may deem advisable.”

[1] By article 302 of the Penal Code of the state it is made a misdemeanor punishable by fine for any one to conduct on Sunday a place for public amusement where an admission fee is charged. But, while the petition contains the allegation that an information has been filed against Barry as a basis for criminal prosecution for the offense mentioned, there is no allegation that he has in fact been engaged in operating a moving picture show on Sunday and charging admission fees thereto-The allegation to the effect that Barry “will continue to carry on said business in violation of the law of the state unless restrained by your honor” ⅛ a mere conclusion of the pleader without stating the facts which would constitute such a violation of the criminal statute. The absence of any allegation of fact showing that Barry was conducting a moving picture show on Sunday in violation of the criminal statute would, of itself, render the petition for injunction wholly insufficient as a basis for the writ that was issued, even though it could be said that an injunction will lie to restrain a violation of that criminal statute.

[2] Furthermore, in the absence of some-special statutory authority therefor, it is a familiar rule that an injunction will not issue to restrain the commission of an act constituting a misdemeanor punishable under the-criminal statutes where no property rights of' the complainant are involved. York v. Ysaguairre, 31 Tex. Civ. App. 26, 71 S. W. 563; Manor Casino v. State, 34 S. W. 769; 14 R. C. L. pp. 376 to 380.

For the reasons indicated, the order made-by the district judge granting the temporary writ of injunction is vacated, and the writ issued thereunder annulled, and this judgment will be certified to the trial court for-observance.

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212 S.W. 304, 1919 Tex. App. LEXIS 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-v-state-texapp-1919.

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