Claunch v. State

• Citation: 204 S.W. 436
• Decision Date: 15 May 1918
• Docket Number: (No. 4615.)
• Parties: CLAUNCH v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 436

204 S.W. 436

CLAUNCH v. STATE.

(No. 4615.)

Court of Criminal Appeals of Texas.

May 15, 1918.

Rehearing Denied June 19, 1918.

Appeal from Fisher County Court; M. A. Hopson, Judge.

W. W. Claunch was convicted of keeping a disorderly house, and he appeals. Affirmed.

E. A. Watson, of Rotan, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of keeping a disorderly house under certain clauses of articles 496 and 500, P. C.

The indictment was in several counts. Only two were submitted; hence it is unnecessary to state anything about the others. One of those submitted was under this part of article 496, viz.:

"A `disorderly house' is * * * any house located in any county * * * where the sale of intoxicating liquor has been prohibited under the laws of this state, in which such nonintoxicating malt liquor is sold or kept for the purpose of sale, as requires the seller thereof to obtain internal revenue license under the laws of the United States as a retail malt liquor dealer."

And article 500, which is:

"Any person who shall directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, * * * a disorderly house, in any house, building, edifice or tenement, * * * shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the case may be, * * * a disorderly house, * * * and on conviction shall be punished by a fine of $200.00, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such * * * disorderly house."

One count, the third, alleged:

That appellant, "on or about the 26th day of January, 1917, in the county of Fisher, state of Texas, and anterior to the presentment of this indictment, did then and there keep and was concerned in keeping, and knowingly permitted, to be kept, a certain house, building, edifice, and tenement, situated in said county and state after an election had been held by the qualified voters of said county, on the 4th day of November, 1902, in accordance with the law to determine whether or not the sale of intoxicating liquor should be prohibited in said county, and said election had resulted in favor of prohibition in said county, and the commissioners' court of said county had duly made, passed, and entered its order declaring the result of said election, and absolutely prohibiting the sale of intoxicating liquors within said county, as required by law, and the county judge of said county had caused said order to be published in the manner and form and for the length of time required by law, and that the said W. W. Claunch did then and there, in said county and state, keep and was concerned in keeping, and knowingly permitted to be kept, the said certain house, building, edifice, and tenement for the purpose and in which nonintoxicating malt liquors were sold and kept for the purpose of sale; as required the seller thereof, to obtain internal revenue license under the laws of the United States as a retail malt liquor dealer."

The other, fourth, made the same allegations about the election and prohibition being put in force as the one just above copied, and that:

"On or about January 26, 1917, W. W. Claunch was then and there the proprietor and lessee of a certain house, building, edifice, and tenement wherein said proprietor and lessee, W. W. Claunch, had posted and caused to be posted license issued by the United States of America authorizing said proprietor and lessee thereof to pursue the occupation and business of a retail malt liquor dealer."

The jury convicted him under both counts, but imposed one penalty only. So that, if the evidence was sufficient as to either or both, conviction would be sustained.

This law itself and others like it in principle have so often been held valid and constitutional that we deem it unnecessary to discuss it, but merely cite some of the authorities. Johnson v. Elliott, 168 S. W. 968; Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Bumbaugh v. State, 55 Tex. Cr. R. 227, 116 S. W. 1152; Tachini v. State, 59 Tex. Cr. R. 55, 126 S. W. 1139; Sweeney v. State, 59 Tex. Cr. R. 370, 128 S. W. 390; Todd v. State, 60 Tex. Cr. R. 199, 131 S. W 606; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, and a long line of decisions following that decision down to this date; Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Dupree v. State, 102 Tex. 455, 119 S. W....