Garrett v. State

• Decision Date: 08 June 1932
• Docket Number: No. 3734.,3734.
• Citation: 51 S.W.2d 822
• Parties: GARRETT v. STATE.
• Court: Texas Court of Appeals

51 S.W.2d 822

GARRETT v. STATE.

No. 3734.

Court of Civil Appeals of Texas. Amarillo.

June 8, 1932.

Rehearing Denied July 6, 1932.

Appeal from District Court, Wilbarger County; W. N. Stokes, Judge.

Suit by the State of Texas against R. D. Garrett. From an adverse judgment, defendant appeals.

Judgment reformed and, as so reformed, affirmed.

Killough & Dotson, of Vernon, for appellant.

John Myers and R. R. Donaghey, both of Vernon, for the State.

JACKSON, J.

The state of Texas, acting by and through the district attorney of the Forty-Sixth judicial district and the county attorney of Wilbarger county, instituted injunction proceedings in the district court against the defendant R. D. Garrett to enjoin him from operating a pool hall in the city of Vernon.

The state alleged: That on and long prior to May 11, 1931, the defendant was and now is engaged in operating a pool hall in the basement of a building located at 1618 Main street in the city of Vernon in Wilbarger county. That the defendant exhibited in said building pool tables on which the game of pool was and is played with cues and balls, for hire, revenue, and gain. That the defendant in operating and maintaining said place aids and abets other persons in playing the game of pool in said building, on said tables, and betting thereon, and paying fees to the defendant for the privilege of playing pool in the basement of said building. That said building has heretofore been actually and habitually used by the defendant for such purposes and he contemplates the continuous use of said building in the future for such purposes, all of which is prohibited by law.

The state sought to perpetually enjoin the defendant from using the basement of said building to exhibit pool tables, cues, and balls, collecting fees from players for their use in playing the game of pool, and from permitting the players to bet on the game of pool played on said tables in said building.

The defendant answered by general demurrer and general denial, specially denying that he was operating a pool hall for hire, revenue, or gain, or exhibiting pool tables for hire, revenue, or gain, or that said building had theretofore actually and habitually been used by him for such purposes, or that he contemplates its use for such purposes in the future, or that he is operating and maintaining said place for playing pool, or permitting betting on the game or collecting fees which are prohibited by law or aiding and abetting any person in playing the game of pool or betting thereof in violation of law.

He pleads that he is the manager of the Derrick Athletic Club operated in the place described in plaintiff's petition, which club is duly organized under the laws of the state under a charter issued by the secretary of state, and which club has pool tables for the entertainment of its members, and that no person is permitted to play except the members of the club and no fees are charged for the use of the pool tables to the members of the club.

In response to special issues submitted by the court in his main charge, the jury found, in effect, that the principal game played in the building operated by the defendant was the game of pool; that the fees or charges paid to the defendant by the players was for the privilege of being allowed to play specific games of pool; that the fees so paid by those who played pool in said building were not paid in good faith as a credit on monthly dues by the members of the Derrick Athletic Club; that the defendant would not continue the operation of said club if the pool tables in use were removed from said building. In response to a special issue submitted at the request of the defendant, the jury found that the Derrick Club was not a bona fide club operated by the defendant without profit to the club.

On these findings judgment was rendered perpetually enjoining the defendant, R. D. Garrett, his agents, employees, etc., from operating a pool hall in the building in question for hire, fees, or gain, or permitting betting on the game of pool in said building, or exhibiting the pool tables, cues, and balls for such purposes, from which judgment the defendant prosecutes this appeal.

The appellant urges as error the action of the trial court in overruling his general demurrer to the petition, urging that it is not sufficient to authorize a judgment against him; that the allegations therein are but conclusions of the pleader, do not charge that the building was actually and habitually used for the purpose of exhibiting pool tables for hire, revenue, or gain, and fails to name the persons who played pool on the tables in said place and paid fees for the privilege thereof.

Article 4668 of the Revised Civil Statutes provides: "No person acting for himself or others shall maintain or operate a pool hall within this State. The term `Pool Hall,' as used herein, includes any room, hall, building or part thereof, tent or enclosure of any kind similar to those named, or any inclosed open space, in which are exhibited for hire, revenue, fees or gain of any kind, or for advertising purposes of any kind, any pool or billiard table or stand or structure of any kind or character on which may be played pool or billiards, or any game similar to pool or billiards played with balls, cues or pins or any similar device. Any such table, stand or structure of any kind used or exhibited in connection with any place where goods, wares or merchandise or other things of value are sold or given away or where or upon which any money or thing of value is paid or exchanged shall be regarded as a place where is exhibited the same for hire, revenue or gain. The habitual, actual, or contemplated use of any premises, place, room, building or part thereof or tent, or any kind or character of enclosure similar to those named, or any uninclosed open space for the purpose of exhibiting any table, stand or structure of any kind described in this article may be enjoined at the suit of either the State or any citizen thereof."

The petition alleges the material requirements contained in the statute to constitute a cause of action.

In construing the sufficiency of an indictment in a criminal case, the Court of Criminal Appeals, in Aven v. State, 102 Tex. Cr. R. 478, 277 S. W. 1080, 1081, says: "The state's burden as to its pleading is met in any case when, in language of ordinary use and meaning it is stated that the accused, at a time and place named, did those things which are denounced by statute as a crime." Lane v. Bell, 53 Tex. Civ. App. 213, 115 S. W. 918; Cain et al. v. State, 47 Tex. Civ. App. 382, 106 S. W. 770; Pool v. Chapman (Tex. Com. App.) 283 S. W. 762.

This is not a criminal prosecution nor a suit to recover a penalty prescribed by the statute, and in our opinion the petition is sufficient against a general demurrer.

The appellant by proper assignments contends that inasmuch as there is no jury finding, either that appellant had actually and habitually used the premises for operating a pool hall or exhibiting pool tables, cues, and balls therein for hire, gain or revenue, or that he contemplated so using said building and the tables, and no such issues were submitted or requested, the court committed reversible error in the judgment rendered against him.

In North v. Atlas Brick Co., 13 S.W.(2d) 59, 61, the Commission of Appeals says: "Next, it is complained the judgment for the plaintiff...