Joliff v. State

109 S.W. 176, 53 Tex. Crim. 61, 1908 Tex. Crim. App. LEXIS 555

Opinions

BAMSEY, Judge.

Appellant was convicted in the county court of Grayson County, Texas, on an indictment charging him with keeping a disorderly house—that is, with keeping a house in which intoxicating liquors were sold and kept for sale, without having first obtained a license to sell such liquors. The case was begun and prosecuted under chapter 132 of the Act of the Thirtieth Legislature, p. 240. The judgment of conviction is assailed and reversal thereof sought, on many grounds; and the claim is made here that said act is unconstitutional and void, as being in contravention of several sections of our State Constitution.

The first proposition submitted, and the first substantial contention made by appellant is, that the act of the Legislature under which the conviction was obtained was invalid, as being violative of section 35, article 3, of our Constitution. This article is, as follows: “No bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed.” It has been held uniformly in this State that a liberal construction will be applied to an act of the Legislature in determining whether or not it violates this section of our Constitution. Breen v. Ry. Co., 44 Texas, 302; Giddings v. San Antonio, 47 Texas 548; State v. Parker, 61 Texas, 265; Morris v. State, 62 Texas, 728; Ratigan v. State, 33 Texas Crim. Rep., 301; Tabor v. State, 34 Texas Crim. Rep., 631. The title of the act in question undertakes to amend article 359, chapter 4, title 10, of the Penal Code of the State of Texas, defining what constitutes a disorderly house, so as to include, among other things, any house in which spirituous, vinous or malt liquors are sold or kept for sale without the proprietor having first obtained a license under the laws of the State as a liquor dealer. The act also contains other definitions of what constitutes, under the law, a disorderly house. In this case, as stated, appellant was charged with keeping a disorderly house, in that he kept a house in which intoxicating liquors were sold and kept for sale without having first obtained a license to retail such liquors.

As stated in the case of Fahey v. State, 27 Texas Crim. App., 146: “Suppose there be more than one object mentioned in the act. If they be germane or subsidiary to the main subject, or if relative directly or indirectly to the main subject, have a mutual connection and are not foreign to the main subject, or so long as the provisions are of the same nature and come legitimately under one general denomination or subject, we cannot hold the act unconstitutional.” There may be some doubt as to whether article 359a is included within the title of the act in question. It is, however, unnecessary to decide this question. It is certain that the act for which appellant is prosecuted in this case is included and under •the provision of the Constitution above quoted, “but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed.” This would give appellant no just ground of complaint. In other words, if it be held that article 359a is not germane, or fairly embraced within the title of the act in question, it is easily separable from the other matters and things named in the title, and its inclusion therein would not have the effect to avoid the subject properly embraced in it. It has been held that courts will sometimes sustain a plural act as to one of the subjects embraced, when the subjects are separable and there is anything to indicate which is the principal act. This principle is strengthened by a reference to our Constitution as above stated.

Again, it is contended by counsel for appellant that the act in question which prohibits the keeping of a house where spirituous, vinous or malt liquors are sold, or kept for sale, has been repealed by sections 4, 5, 6, and 27, chapter 132 of the Act of the Thirtieth Legislature, popularly known as the Baskin-McGregor bill. We can not accede to this view. The subject of the repeal of a statute by implication was maturely considered and elaborately discussed by this court in the case of Williams v. State, 52 Texas Crim. Rep., 371, decided January 22, 1905. The views there expressed in effect held adversely to the contention of appellant here. As confirmatory of the decision in that case, we call attention to the language of our Supreme Court in Cain v. State, 20 Texas, 355; “The rule is, that in the construction of acts of the same session, the whole must be taken and construed as one act, and to make a latter provision repeal a former, there must be an express repeal, or an irreconcilable repugnancy between them.” Again, in the same case, the court say, p. 365: “Nothing short of a direct express repeal in terms, or such irreconcilable repugnancy as that both can not stand together, and one consequently must give place to the other and operate its repeal by implication, has, it is believed, ever been held sufficient to justify a court in holding one act repealed by another passed at the same session.” Nor is it believed that the offense named in the act under consideration is, in all respects, identical with those undertaken to be. defined and punished in the Baskin-McGregor bill. Here the ingredients of the offense charged are, and the indispensable things to be proven are, first, a house must be kept; second, spirituous, vinous or malt liquors are sold, or kept for sale; and, third, the defendant must be without a license. The ingredients of the offense defined in chapter 138 of the Act of the Thirtieth Legislature, p. 258, are; first, that the defendant must sell such liquor, and he must be without a license. It is not necessary under the last named act that the business shall be pursued in a house, but throughout said act the location of such business is referred to as a house or place. In the case of Stanford v. State, 16 Texas Crim. App., 331, the court say: “Occupation as used in this statute and as understood commonly, would signify vocation, calling, trade, the business which one principally engages in to procure a living or to obtain wealth. It is not the sale of liquor that constitutes the offense. It is the engaging in the business of selling without paying the occupation tax. It does not require even a single sale to constitute the offense, for a person may engage in the business without succeeding in it, even to the extent of one sale. So on the other hand, a person may make occasional sales of liquor without pursuing or following or intending to pursue or follow the occupation of selling liquor.” To hold that the passage of the Baskin-McGregor law subsequent to the act in question operates as a repeal of the act here in question, would lead to results Which we can not believe were, or could have been in contemplation of the Legislature, and we are not at liberty to impute to them such intention. For instance, section 23 of the Baskin-McGregor law provides that no license shall issue to any person doing business as a liquor dealer in any house or building used for a gambling house, etc., and if the building in which such business is conducted shall be so used with the knowledge of the licensee, his license shall be revoked. Section 24 of the same act, provides that it shall be unlawful to permit in such place of business any boxing, wrestling, or other exhibition, or any gambling table, ten pin alley, etc., or other device for gambling. If because the Baskin-McGregor law treats and prohibits these things, it shall be held to super-cede all prior legislation having any reference to the same, or similar matters, it will operate by implication to repeal and emasculate the law against prize fighting, gambling, as well as the statute in respect to disorderly houses. See Act, 30 Leg. sec. 27, p. 268.

It is next contended, in effect, that the act in question is invalid in that it is not a general law equally operative in all parts of the State, and that same is in violation of section 20, article 16 of the Constitution. This section is as follows: “The Legislature shall at its first session enact a law whereby the qualified voters of any county, justice’s precinct, town, city (or such subdivision of a county as may be designated by the commissioners court of said county), may by a majority vote determine from lime to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.” It is urged by the State that the contention of appellant seems to ignore the fact that local option and non-local option territory alike, have laws regulating the licensing and sale of intoxicating liquors, and that in consequence he overlooks the necessity for a general law, such as the one in question. If, however, the State contends, this court should assimilate the act in question to a law by its terms limited to local option territory, then they insist that such act dealing, as it does, with the sale of intoxicating liquors, and being germane to the main subject and considered by the Legislature as a necessary auxiliary to the enforcement of the will of the people, as expressed by the adoption of local option, the same should be held by every test as a valid law. We are inclined to believe that both of these contentions of the State are correct. Certainly, if we are to have respect for the decision of the Supreme Court, as declared in the case of Ex parte Dupre, 105 S. W. Rep., 349, this is no longer in -this State an open question. In that case, in discussing the search and seizure law, which by its terms was limited to local option territory, and in view of the question there raised that said act was unconstitutional, because in excess of the power of the Legislature, as limited by article 16, section 20 of the Constitution, in a luminous opinion upholding the validity of the law, the court say: “The Constitution does not require the Legislature to submit to the vote of the people the law which is necessary to enforce prohibition, and it has not done so. That is a proper subject for legislative action. It has been held in this State that the Legislature can not go beyond the limits of the Constitution and prohibit the giving away of liquors within the prescribed territory, but that does not in the least interfere with nor limit the power of the Legislature to enact all suitable and necessary laws for the enforcement of the will of the people on that subject. The law in question is not subject to the objection urged.” So both on reason and authority, the contention here considered must be held adversely to appellant. This view is supported by the holding of the Court of Civil Appeals of the second district, in the case of Clopton v. State, 105 S. W. Rep., 994.

Motion was made to quash the indictment on various grounds, which in view of the length of this opinion, we deem unnecessary to discuss. The indictment was carefully drawn with special reference to the forms laid down in Willson’s Criminal Forms, Ho. 218, which have heretofore received the approval of this court in numerous cases.

Objection was made to the proof introduced by the State of the general reputation of the house kept by appellant. It was shown, without controversy, that appellant had leased the house in question and was occupying the same under a claim of right so to do and without any suggestion by inference or otherwise, that any one else had any right of occupancy therein. In addition to this, it was shown that appellant had internal revenue license as a retail liquor dealer. While it has been held that the fact of sale of intoxicating liquors could not be proved by reputation, or hearsay, the rule, as we understand, is well nigh universal that where the character of the house, the keeping of which is denounced by statute, is at issue, such proof may be made by general reputation. Allen v. State 15 Texas Crim. App. 320; Burton v. State, 16 Texas Crim. App. 156; Harkey v. State, 33 Texas Crim. Rep., 100; Sprague v. State, 44 S. W. Rep., 537; Golden v. State, 34 Texas Crim. Rep., 143; 29 S. W. Rep., 779.

As a circumstance tending to establish that the house was kept for the purpose of selling and keeping for sale, intoxicating liquors, the State proved by several witnesses that persons other than the appellant sold at such place intoxicating liquors in his absence He is not charged, or sought to be convicted for making these sales. The facts objected to were offered and received in evidence as a circumstance tending to establish the character and nature of the busitiess transacted at appellant’s place of business and as proof that the said house was kept for the purpose of keeping for sale therein, intoxicating liquors; and to establish this fact, we hold that it was competent to prove that other persons besides appellant, who worked in his place of business, sold liquors therein. Even in a case where a defendant has been charged directly with the unlawful sale of intoxicating liquor in prohibition territory, proof has not always' been restricted to sales made by such defendant in person. In the ease of Gerstenkorn v. State, 38 Texas Crim. Rep., 621; 44 S. W. Rep., 502, Judge Hurt, discussing the facts of that case says: “How, when we look to all these facts, we are of the opinion that the court was clearly right in submitting the charge complained of. Who was the person that waited on the customers ? What was he doing there? He was either an interloper or he was in the employ of or the agent of the appellant. Why did appellant procure a license from the Federal Government ? Why did he have a place of business? Why was he engaged in the sale of drinks? Why were parties informed of his place of business, and where to go to get drinks, if he was not running this establishment? It was called his place of business. How, the mere fact that he was not present but that some one else waited on the customers, does not relieve him of guilt at all. If he had by an agent, clerk, bartender, sold intoxicating liquors, he is guilty as a principal.” The reason of the introduction of the testimony in this case, where the principal inquiry at issue is the character of the house, would seem to be not only strong but would clearly admit such proof.

Again, it is contended by appellant that the court erred in admitting in evidence the testimony of one Barrett, a witness for the State, to the effect, in substance, that on the 10th day of September, 1907, he saw a United States Internal Bevenue License in the name of appellant, posted up in his drug store at Denison, Texas, in the house claimed to be run as a disorderly house, and for which appellant is prosecuted in this case. ’This testimony was objected to on the ground that it was hearsay and secondary and not the best evidence; and the proposition submitted under this assignment, in view of this objection is, that a written instrument is the best evidence of its contents. From this general proposition, of course, no one could dissent; but as contended by counsel for the State, it is well settled that among the exceptions to this general rule of evidence is that secondary testimony may be given of writing that can not be produced in court, such as mural monuments, documents shown to be in a foreign country, books of great concern, the removal of which would be very inconvenient, and others such as license required by the Federal Statute, which could not be removed from the place of business of appellant and produced in court without involving a violation of a Federal Statute. We think that where the terms of the revenue license is not the subject matter of controversy, nor in dispute and where no construction of same is sought but the fact only of the possession of such license is sought to be proved, that the objection here made should not be upheld. See 1 Jones on Evidence, section 304, and authorities cited.

There are many other questions made in the record, and treated in the able and ingenuous brief of counsel for appellant. These we have carefully considered, but deem a discussion of them unnecessary.

Finding no error in the record, it is ordered that the judgment ought to be and the same is hereby in all things affirmed.

Affirmed.