Lorance v. State, 13417.
| Decision Date | 07 May 1943 |
| Docket Number | No. 13417.,13417. |
| Citation | 172 S.W.2d 386 |
| Parties | LORANCE v. STATE. |
| Court | Texas Court of Appeals |
Appeal from Collin County Court; H. H. Neilson, Judge.
Proceedings in the matter of the prosecution of J. O. Lorance for illegal transportation of intoxicating liquors in an automobile which was seized when defendant was arrested, wherein Mrs. L. A. Lorance intervened to have automobile restored to her. From a judgment ordering disposal of the automobile, intervenor appeals.
Reversed and remanded.
O. H. Woodrow, of Sherman, for appellant.
Dwight Whitwell, Cr. Dist. Atty., of McKinney, Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Asst. Atty. Gen., for appellee.
This controversy arose in the following manner: J. O. Lorance, charged by complaint filed in the County Court of Collin County with the illegal transportation of intoxicating liquors, plead guilty and paid the fine imposed. When arrested, Lorance was driving an automobile, carrying a case of whiskey. The arresting officer took charge of both the whiskey and automobile and held same subject to proper disposition under provisions of Article 666—44 of the Penal Code, Vernon's Annotated. After Lorance plead guilty, his mother, Mrs. L. A. Lorance, appellant herein, intervened in the proceedings, contending (1) that the County Court was without jurisdiction to order the automobile sold; and (2) that she owned the automobile, did not know it was being used, or would be used, by her son in the illegal transportation of intoxicating liquors, and prayed that it be restored to her. The State filed no answer to appellant's plea of intervention. Although she requested a jury and paid the necessary fee, the Court denied her request, and, after hearing evidence, concluded that appellant owned the automobile, but, having failed to show good cause why it should not be sold as provided in said Article of the Penal Code, ordered the sheriff to dispose of the car and after first paying costs and expenses of seizure and sale, to pay balance of proceeds to the Liquor Control Board of the State; to all of which, appellant excepted, gave notice of and perfected this appeal.
At the outset, we are confronted with two jurisdictional pleas—one by appellant, contending that the County Court was without jurisdiction, based on the theory that this is a suit by the State to recover penalties, forfeitures, etc., within the meaning of Sec. 8, Art. 5 of the Constitution, Vernon's Ann.St., hence the district court alone had jurisdiction of the subject-matter. The State contends that the order of the trial court, directing sale of the automobile, being part of the procedure provided by law for bringing an offender to justice, the appeal should have been to the Court of Criminal Appeals. For reasons which will be stated, we do not think either contention is correct.
Appellant voluntarily entered the County Court, set up her claim to the automobile, and alleged reasons why it should not be sold. Art. 666—44 made it the duty of the Court, upon the conviction of J. O. Lorance, to order the car sold, unless the owner should show good cause why that should not be done; in other words, the conviction of Lorance carried as part of the penalty, forfeiture of the car in so far as he was concerned, subject to the right of Mrs. Lorance, owner, to intervene and show good cause why her property should not be sold under the judgment of forfeiture. The statute provides that the vehicle, team, automobile, boat, aircraft, watercraft, or any other conveyance used in transporting liquor in violation of law, shall be seized and disposed of by the County Court, without reference to its value. That court had jurisdiction same as under other criminal statutes containing similar provisions for the confiscation and disposition of property used for illegal purposes; such a proceeding, in our opinion, is not a suit on behalf of the State to recover penalties, forfeitures or escheats, within the meaning of Sec. 8, Art. 5, of the Constitution. The decision in the case of Roberts v. Gossett, Tex.Civ.App., 88 S.W.2d 507, rules the question of jurisdiction under discussion. In that case, the owners of marble machines seized sought to enjoin the county attorney and sheriff from confiscating same on the theory that they were not gambling devices. The district court first granted a temporary writ, but on hearing dissolved the same and its judgment was affirmed by the Court of Civil Appeals holding that, the question whether the machines in fact were gambling paraphernalia, was a matter to be determined by the county court in the criminal prosecution, and that the owners had an adequate remedy at law and could be protected by trial of the issues in the court having possession of the machines.
Whether or not the provision of the statute under consideration giving the owner of property seized the right to intervene and show good cause is exclusive, we are not called upon to say, however, are of opinion that appellant, having availed herself of the remedy provided by statute, is bound by the result, therefore overrule her contention that the County Court was without jurisdiction to determine the issues presented in her plea of intervention.
The State contends, however, that the Court of Criminal Appeals alone has jurisdiction of the appeal, in that, the order of court, directing the officer to sell the automobile, was merely an incident to the criminal prosecution. We cannot accept this theory. Appellant occupies a position wholly without the circumference of the criminal prosecution; she was not charged either as principal, accomplice or accessory to the unlawful act charged against her son. She became involved because her automobile was used by the culprit in the commission of the criminal offense, hence do not think her property should be forfeited and sold to satisfy the judgment of forfeiture against the offender unless she knew or had good reason to believe the car was being, or would be, used for the commission of the offense charged; such, in our opinion, was the issue presented in her plea of intervention in which she assumed the burden of showing good cause why her car should not be sold; in other words, assumed the burden of showing that in permitting the use of her car, she was without conscious guilt in the respect mentioned. It may be true, in a general sense, that appellant's plea of...
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People v. One 1941 Chevrolet Coupe
...it with a pint of whisky in his pocket. She did not know that her husband carried the whisky in the car.23 'See also Lorance v. State, Tex.Civ.App., 172 S.W.2d 386; Donovan v. Mayor etc. of Vicksburg, 29 Miss. 247, 249, 64 Am.Dec. 143.24 'See State v. Intoxicating Liquor, 55 Vt. 82; State v......
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State v. Richards, A-6145
...of the owner of a vehicle is quite different from that of one who merely holds a lien thereon. Appellee also cities Lorance v. State, Tex.Civ.App., 172 S.W.2d 386, wr. ref., but the case is not in point here. The statute which was there considered expressly recognizes the right of an innoce......
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State v. Eaves
...article 24, C.C.P.1925 (omitting, however "criminal prosecution" and "criminal accusation"). See, e.g., Lorance v. State, 172 S.W.2d 386, at 388 (Tex.Civ.App.--Dallas 1943); Kemper v. State, 63 Tex.Cr.R. 1, 138 S.W. 1025, at 1038-1039 (1911), overruled on other grounds, Robertson v. State, ......
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People v. One 1941 Chevrolet Coupe
...drove it with a pint of whisky in his pocket. She did not know that her husband carried the whisky in the car.23 See also Lorance v. State, Tex.Civ.App., 172 S.W.2d 386; Donovan v. Mayor, etc., of Vicksburg, 29 Miss. 247, 249, 64 Am.Dec. 143.24 See State v. Intoxicating Liquor, 55 Vt. 82; S......