Green v. State

• Decision Date: 14 April 1932
• Docket Number: No. 2288.,2288.
• Citation: 49 S.W.2d 519
• Parties: GREEN v. STATE.
• Court: Texas Court of Appeals

49 S.W.2d 519

GREEN v. STATE.

No. 2288.

Court of Civil Appeals of Texas. Beaumont.

April 14, 1932.

Appeal from District Court, Hardin County; Thos. B. Coe, Judge.

Suit by B. A. Coe, County Attorney, for the State, against Willie Green to abate a nuisance. From the judgment perpetuating the temporary injunction granted, defendant appeals.

Reversed, and injunction dissolved.

R. M. Briggs, of Kountze, for appellant.

B. A. Coe, of Kountze, for the State.

O'QUINN, J.

On February 19, 1932, B. A. Coe, the duly elected, qualified and acting county attorney of Hardin county, Tex., instituted this suit in the district court of Hardin county, Tex., for and on behalf of the state of Texas, against Willie Green, the petition alleging that the defendant, Willie Green, was maintaining certain premises known as "Willie Green's Dance Hall," describing the premises on which the hall was located, situated in said county and state, in such manner as to constitute a public nuisance.

The allegations made with reference to violations of the law which the relator, the state of Texas, claimed the premises to be a public nuisance, read:

"And for cause of action, plaintiff respectfully represents to the court, that heretofore, to-wit, on and prior to the 18th day of February, A. D. 1932, that said defendant above mentioned, was using, and is now using, concerned in using, and is actually and habitually using and is threatening and contemplating the use of certain premises, places, buildings and parts thereof, situated on the M. W. Bumpstead Survey of land in Hardin County, Texas, near the Iron bridge on Village Creek on Highway No. 8, in said county, and more particularly described as follows, to-wit: said premises, situated on an eight (8) acre tract of land on said M. W. Bumpstead Survey about 500 ft. east from Highway No. 8, where said highway extends in a southerly direction from Village Creek leading to Beaumont and being about six (6) miles south from the town of Silsbee, in Hardin County, Texas, and a part thereof, as a place to which intoxicating liquors are given away and transported to and from, in violation of the laws of the State of Texas.

"That the said defendant is so using and is aiding and abetting other persons in the use of the above mentioned and described premises, places and buildings, and a part thereof, in a manner and way which constitutes said place to be a common nuisance, as that term is defined in article 4664, Civil Statutes of 1925, of the State of Texas, and as that term is defined in article 5107, in the Civil Statutes of 1925, of the State of Texas, and as that term `common nuisance' is defined in articles 687, 688 and 689, of the Penal Code of the State of Texas, in this, that the said defendant knowingly keeps, maintains and operates said place and premises above described, and a part thereof, as a place where intoxicating liquor is being given away, and where intoxicating liquor is being transported to and from, in violation of the law, and that said premises are threatened to be so knowingly used by the defendant as a place where intoxicating liquor is and will be given away, transported to and from in violation of the law; that the defendant maintains and assists in maintaining the aforesaid house, premises and places, and a part thereof, where intoxicating liquors are frequently given away and frequently transported to and from said premises in violation of the law and are threatened by this defendant to be so maintained."

The petitioner prayed for an injunction abating said nuisance and perpetually enjoining the defendant from carrying on same, and that said premises be closed for the period of one year, unless replevied and bond executed for same, as prescribed by law.

The court granted a temporary injunction, which, upon motion of defendant to dissolve, and upon hearing, was made permanent. This appeal is from the judgment perpetuating the injunction.

The action is based upon articles 4664, 4665, 4666, and 5107, R. S. 1925, and article 688 of the Penal Code of the state.

The said articles read as follows:

"Art. 4664. Nuisance.—Any hotel, rooming house or boarding house, country club, garage, rent car stand or other place to which the public commonly resort for board or lodging or commonly congregate for business or pleasure, where intoxicating liquors are kept, possessed, sold, manufactured, bartered or given away, or to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor, or where intoxicating liquors are furnished to minors or to students of any educational institution, or where persons resort for the purpose of gambling, or for the purpose of prostitution, is hereby declared to be a common nuisance. Any person who knowingly maintains or assists in maintaining such a place is guilty of maintaining a nuisance.

"Art. 4665. Nuisance; evidence.—Proof that any of said prohibited acts are frequently committed in any of said places shall be prima facie evidence that the proprietor knowingly permitted the same, and evidence that persons have been convicted of committing any said act in a hotel, boarding house or rooming house, is admissable to show knowledge on the part of the defendants that this law is being violated in the house. The original papers and judgments or certified copies thereof in such cases of convictions may be used in evidence in the suit for injunction and oral evidence is admissable to show that the offense for which said parties were convicted was committed in said house. Evidence of general reputation of said houses shall also be admissable to prove the existence of said nuisance.

"Art. 4666. Nuisance; prosecution.— Whenever the Attorney General, or the district or county attorney has reliable information that such a nuisance exists, either of them shall file...