Krnavek v. State

• Decision Date: 16 June 1897
• Citation: 41 S.W. 612
• Parties: KRNAVEK v. STATE.
• Court: Texas Court of Criminal Appeals

41 S.W. 612

KRNAVEK v. STATE.

Court of Criminal Appeals of Texas.

June 16, 1897.

Appeal from Williamson county court; D. S. Chessher, Judge.

Henry Krnavek appeals from a conviction of the violation of a local option law. Affirmed.

Mann Trice, for the State.

HURT, P. J.

Appellant was convicted for selling intoxicating liquor in a local option precinct, and his punishment assessed at a fine of $100 and 20 days' imprisonment in the county jail; hence this appeal.

The evidence discloses that at the town of Bartlett, in a local option precinct, there was formed a private corporation, known and styled as the "Bartlett Harmony Club," which was incorporated under the laws of this state for literary purposes, to promote social intercourse among its members, to provide the conveniences of a clubroom, and was to continue for a period of 50 years. It had a board of directors, consisting of 5 members, elected from the membership, who were to manage the affairs of the club. Said club was to have no capital stock and no assets. It had by-laws, among which were the following: "(1) The steward's duty is to wait upon the members of the club, to furnish them with drinks, whisky, beer, etc., and other refreshments, and to take pay therefor from the members. (2) The proceeds of all sales are to be paid by him into the treasury of the club, to be reinvested by the club in such like drinks, to replace those sold, for the benefit of its members. (3) The steward or barkeeper is prohibited from letting any one but a member or invited guest from having anything to drink or eat." The defendant was the steward or barkeeper. The club was not formed until after prohibition was put in force. The house in which the clubroom is located was the defendant's barroom, which he kept as a saloon prior to the time when local option went into effect. It had the usual appurtenances of a barroom and saloon, and the same bar that belonged to defendant's saloon. In the front part of the room a brother of the defendant kept a lunch counter, and sold lemonade and soda water. The clubroom and the lunch counter were in the same room, but divided one from the other by a partition. The defendant sometimes waited on his brother's customers, and sometimes the brother waited on the club members, in the absence of the defendant. The purchaser in this case was one of the board of directors of the corporation at the time of the purchase, and was the secretary of the board. This clubroom had a bar, where the whisky and other intoxicants were kept for use of the club members. The club also had a reading room, and in the rear of the club a gymnasium. It also had a billiard table and domino table for the use of its members. One of the witnesses testified that the directors issued instructions to the defendant as steward to let no one but members of the club and nonresident visitors buy drinks, and no one but an invited guest or members were allowed in the clubroom. The members could only be elected by the board of directors, any three of whom could defeat such election. Each member paid as an initiation fee the sum of $1, and monthly dues of 5 cents. When the club was first organized the initiation fee was $1, and the monthly dues 25 cents, but later on said monthly dues were reduced to 5 cents. The purpose of this club was stated to be social and literary. All the papers, books, whisky, beer, soda water, cigars, etc., were purchased and paid for out of the money of the club. The witnesses state that defendant had no interest in the whisky, beer, etc., except as any other member. He was paid a salary to serve as steward and barkeeper for said club, and received no profits on the sales. The club issued no stock, and the intoxicants were paid for out of the club funds. No fee was charged for the use of the billiard table, but no one except members could use it. The club is not open, but kept closed as to the public. It pays no state tax, but pays a United States revenue license. A book was kept for registering the names of the members of the club when they joined. The literary features of the club were insignificant. One newspaper was taken, which came twice a week, and about a dozen books were in the library. The club began with about 25 members, and has increased to 125 or 130. The board of directors are the business managers, and the defendant does the ordering, under their direction. The beer and whisky are bought at wholesale prices, and retailed to the members at 5 cents per glass for beer and 15 cents per drink for whisky. The club gets the benefit of the difference. There is no particular expense fund. The expenses are paid from the profits derived from the sale of the beer and whisky, etc., and from the initiation fees paid by the members. No member is entitled simply to his proportional part of the beer and whisky, but can buy as much as he is willing to pay for. It is intended that the club shall pay expenses, but, if it does not, assessments will be made. Another witness, also a member of the board of directors, testified substantially as the former witness, and further said: "That the sale of whisky and beer was not the main purpose of the club; it was for the pleasure of the members. The club was organized for pleasure. No profit was derived from it to any of the members at all. There is no pecuniary benefit to any member at all, and the board of directors instructed the steward or barkeeper not to let any one have beer or whisky except a member." This is the substance of the testimony.

The court instructed the jury in regard to the sale of whisky by defendant, and defining a sale, as follows: "A sale is the passing of the title and possession of any property for money, which the buyer pays or promises to pay." Defendant excepted to the charge, and requested the following instructions: "If you believe from the evidence that the Bartlett Harmony Club is an incorporated institution under the laws of Texas, and duly chartered for literary purposes, to promote social intercourse among its members, and to provide them with conveniences of a clubroom, and that on or about the 14th day of January, 1895, was such, and at such time the defendant and George T. Alten were members thereof, and that such club was formed, chartered, and organized in good faith for the purposes mentioned in its charter of the 17th of October, 1894, and not for the purposes of evading the laws of this state prohibiting the sale of intoxicating liquors, then you are charged that such club would have the right to buy and distribute among its members beer and other intoxicating liquors out of the money of the members of such club, contributed for such purposes, and under such circumstances such beer or...