Irven v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Beauchamp
• Citation: Irven v. State, 136 S.W.2d 608, 138 Tex.Cr.R. 368 (Tex. Crim. App. 1940)
• Decision Date: 07 February 1940
• Docket Number: No. 20818.,20818.
• Parties: IRVEN v. STATE.

136 S.W.2d 608

IRVEN v. STATE.

No. 20818.

Court of Criminal Appeals of Texas.

February 7, 1940.

Appeal from County Court at Law, Jefferson County; C. N. Ellis, Judge.

E. E. Irven was convicted on a charge denounced by Vernon's Ann.P.C., art. 667—19, subd. (e), authorizing the cancellation of a license by the Texas Liquor Control Board when it is found that one has permitted at his place of business any conduct by any person whatsoever that is lewd, immoral, or offensive to public decency, and he appeals.

Reversed and prosecution ordered dismissed.

Leon P. Howell and S. D. Bennett, both of Beaumont, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction in the County Court of Jefferson County upon a charge denounced by section 19, subdivision (e) of Article 667 of the Penal Code, authorizing the cancellation of the license by the Texas Liquor Control Board when it is found that one has: "Permitted at his place of business any conduct by any person whatsoever that is lewd, immoral, or offensive to public decency".

Article 667 is divided into many sections and concludes with the following penalty clause: "Any person who violates any provision of this Article shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Twenty-five ($25.00) Dollars nor more than Five Hundred ($500.00) Dollars or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment."

The language found in the complaint and information in the case before us is as follows: "He, the said E. E. Irven did then and there unlawfully permit Woodrow Tiller to be on said premises, while he, the said Woodrow Tiller, was then and there intoxicated, and the conduct of the said Woodrow Tiller in such intoxicated condition, was then and there offensive to public decency," etc.

While there are other errors complained of in the case which we feel constrained to sustain, we believe that it is sufficient to consider only that which relates to the validity of the statute under which this prosecution is brought.

The State's Attorney has filed a brief confessing the invalidity of the particular section of the article of the statute on the ground that it is too indefinite and uncertain and is therefore unenforceable. An examination of the statute reveals the correctness of this admission. The case of Griffin v. State, 86 Tex.Cr.R. 498, 218 S.W. 494, is in point and controlling on the subject.

In the first place, the court should have sustained the exception to the complaint and information because, in the language written, it is a conclusion on the part of the County Attorney that the conduct was "offensive to public decency". The only conduct mentioned is that the party involved was intoxicated. There is no allegation and no proof in the record of any act or conduct on the part of the individual that would support the conclusion that he was "offensive to public decency". Our greatest trouble, however, is as indicated by the admission of the State's...