Bodovitz v. State Ex Rel. Hodge

1924 OK 194, 231 P. 504, 107 Okla. 207, 1924 Okla. LEXIS 666

• Court: Supreme Court of Oklahoma
• Decided: February 19, 1924
• Docket: 15101
• Status: Published

Opinion

LYDICK, J.

This is a companion case to cause No. 15099 in this court, entitled “Emmett Key and J. A. Bodovitz, Plaintiffs in Error, v. State of Oklahoma ex rel. John L. Hodge, County Attorney, Defendants in Error.” The history of all three of these cases in the lower court is practically the same. The opinion this day handed down in this court in the first of these cases is equally applicable here on questions of both law and fact, and therefore an extensive discussion in this opinion is unnecessary. A final judgment was rendered by the lower court, enjoining the defendants from (perating a rooming house owned by the defendant Bodovitz, and operated by defendant Ford, on grounds that the prohibitory laws were being violated therein and the same constituted a public nuisance.

The only competent and matei-'al evi* dence produced in the case is as follows; A hired itinerant detective testified that about the 3rd of January, 1924, he bought a half pint of corn whisky for $2 of the defendant Jones in this rooming house. A policeman testified '¡that about eight weeks, or longer, before that time “we closed it and got all the whisky out of it,” but on cross-examination admitted that the whisky was not found in the rooming house, but in a stairway somewhere in the. building. The amount of whisky found by the policeman does not appear in the record, and we have no way of knowing whether it was a carload or a half pint. He said the place had a bad reputation. It was established that about that time the place had been closed by an order of injunction in a similar case and upon similar grounds, but we are unable to know whether that injunction was issued on as nearly complete lack of evidence justifying it as this one was.

Rather unsatisfactory proof was offered that Red Jones was emploved bv the defendant Ford, whom we charitably presume, in the absence of evidence, owned the rooming house in the building which was probably owned by the defendant Bod-ovitz, but no effort was made to- prove that Ford authorized or even knew that Red Jones sold this half pint of whisky, or that Bodovitz, the owner of the building, knew or even heard of that transaction or of the whisky in unknown quantities found therein by the policeman. Upon this testimony, a substantial business building has its doors locked, even to legitimate business, for a period of one year.

It is urged by the county attorney that the defendant Ford is a desperate, professional, and notorious violator of 'the prohibitory laws and is a menace to society. If that be ■ true, he may well be encouraged to continue his nefarious course, with knowledge of the fact that the c >unty attorney, bound by law to rid society of a character like him, will rest the prosecution of such an important case against him as this one upon such scant evidence as is produced here. By no process of reasoning can it be said that the evidence in the record before us justifies an injunction to close for a year a building like this, as ordered by the lower court.

The judgment of the district court is reversed, and the case is remanded, with instructions to set aside rhe order of injunction and to grant a new trial herein; to forthwith return to the defendants the peaceable possession of all property seized under the order of in. unction rendered by the lower court; to p a-mit the defendants to further plead herein and upon further trial, in event it app ;ars by a preponderance of the evidence that the state is entitled to injunctive relief, to grant only such relief as from a preponderance of the competent evidence appears necessary in the enforcement ,)f the laws involved and in accordance with this opinion of the court.

JOHNSON, O. 0., And McNEILL, NICHOLSON, COCHRAN, HARRISON, and MASON, JJ., concur.