Mathis v. State

• Decision Date: 23 April 1953
• Docket Number: No. 4834,4834
• Citation: 258 S.W.2d 200
• Parties: MATHIS et al. v. STATE.
• Court: Texas Court of Appeals

Page 200

258 S.W.2d 200

MATHIS et al. v. STATE.

No. 4834.

Court of Civil Appeals of Texas, Beaumont.

April 23, 1953.

Rehearing Denied May 20, 1953.

Fisher, Tonahill & Reavley, Jasper, and Robert S. Coe, Kountze, for appellant,

John Ben Shepperd, Atty. Gen., substituted for Price Daniel, former Atty. Gen., R. A. Richardson, Kountze, and Chap B. Cain, Liberty, for appellee.

WALKER, Justice.

This suit was brought by the State to forfeit a quantity of liquor seized by agents of the Texas Liquor Control Board. When the seizure was made the liquor was in a structure called the T. S. Mathis Package Store, and the appellant T. S. Mathis then held a permit to operate a package store at this place. The appellant Evelyn Reeves was present at the time of seizure and immediately prior thereto had sold a bottle of liquor to one of the representatives of the Board and still earlier that day had sold another bottle of liquor to this man. She was in possession of (or had the custody of) the premises and thus, of the liquor at the time; and an agent of the Board made an inventory of the liquor seized as required by Subdivision (b) of Section 30 of the Texas Liquor Control Act, Vernon's Ann.P.C. art. 666-30(b), and delivered a copy of this to Mrs. Reeves. She later delivered this to the appellant Mathis.

The petition makes complaint of the seized liquor as provided by Section 42 of the Liquor Control Act, Vernon's Ann.P.C. art. 666-42, but appellants Mathis and Evelyn Reeves and the husband of the latter, namely, Richard Reeves, were also made parties defendant. Mathis filed a separate suit against two of the agents of the Board for conversion of the liquor, and this suit was consolidated with that brought by the State.

The petition charges three violations of the Liquor Control Act, Vernon's Ann.P.C. art. 666-1 et seq. The permit to operate a package store at the place where the liquor was seized was issued to Mathis alone, and it was alleged of Mathis that he was violating Subdivision (23) of Section 17 of the Liquor Control Act by allowing another person to use his permit. According to this group of allegations, the liquor seized was stored or was possessed and kept in the T. S. Mathis Package Store by some person in violation of the Liquor Control Act within the meaning of Subdivision (4) of Section 3a of the Act, defining 'illicit beverage', and these allegations were sufficient, in the absence of exception thereto to admit proof of these facts. It was next alleged of Richard Reeves and Evelyn Reeves that they were violating Subdivision (a) of Section 4 of the Liquor Control Act by having the liquor in their possession for the purpose of sale without having a permit as required by law. According to this group of allegations, two identified persons had the liquor in their possession in violation of the Act within the meaning of the definition of illicit beverages which we have cited. On the day of seizure Evelyn Reeves made the two sales of liquor to a representative of the Board, as we have stated, and it was alleged of her that she made these sales without a permit so to do. It is not alleged that Evelyn Reeves alone had the liquor there for sale, and the purpose of these allegations and their relevance is not clear. We infer that the allegations were intended for a part of the charge that the liquor was illicit because of the violation charged against Richard Reeves and Evelyn Reeves jointly.

We construe these allegations as presenting more than one ground of forfeiture. Under these allegations it was open to the State either to show that some unidentified person and not T. S. Mathis, the holder of the permit, had the liquor for sale at the T. S. Mathis Package Store; or else, going one step farther, to show that identified persons, namely, Richard Reeves and Evelyn Reeves, had the liquor there for sale. It is also to be borne in mind in considering the points of error that none of the points assign error to any defect in the petition or to any proof as being without support in the petition.

After Mathis's suit for conversion was consolidated with the State's suit for forfeiture, Mathis, Richard Reeves and Evelyn Reeves filed a joint answer. They plead first a general denial and next a special denial that Mathis had violated Subdivision (23) of Section 17 and the Reeveses had violated Subdivision (a) of Section 4 of the Liquor Control Act. They admitted that Evelyn Reeves had made the sales alleged in the State's petition, but alleged that she did so as Mathis' employee. In the final paragraph of their pleading the three of them adopted the allegations of Mathis's petition in his suit for conversion, thus alleging, in effect, that the liquor and the business conducted at the T. S. Mathis Package Store belonged to Mathis and not to Richard Reeves and Evelyn Reeves. Mathis's petition is not in the transcript, but he proved it and it is in the statement of facts.

The cause was tried to a jury who made the following findings in response to special issues: (1) The alcoholic beverages seized by the Board's agents were illicit beverages as that term had been defined. Subdivision (4) of Section 3a of the Liquor Control Act was given as a definition of 'illicit beverage'; (2) Mrs. Evelyn Reeves did not act as the employee of T. S. Mathis in making sales of said liquor to a certain agent of the Board at the time and place in question; (3) the written statements (Mathis made two, one to an agent of the Federal Government and one to an agent of the Board) introduced in evidence by the State bearing the signature of T. S. Mathis were given by him voluntarily; (4) Mathis's oral statements, made by Mathis to the State and Federal officers on the day of seizure, pertaining to the T. S. Mathis Package Store's operations were made voluntarily; and (5) the written statement signed by T. S. Mathis at the Bluebonnet Cafe (this was the statement made to the Board's agent) was true. Issues 6 and 7, the two issues numbered 8, and the issues numbered IX and X were conditioned on a negative answer to issue 5 and were not answered. (XI) R. W. Reeves owned a part of the alcoholic beverages stored in the T. S. Mathis Package Store on the day of seizure. (XII) T. S. Mathis sustained no actual damages by reason of the seizure of the liquor.

On this verdict the trial court rendered judgment forfeiting the liquor and that Mathis take nothing on his claim for conversion, and further, that the Board recover all costs against the three appellants.

From this judgment, Mathis, Evelyn Reeves and Richard Reeves have appealed.

Appellants' fundamental complaint is of the forfeiture and matters pertaining thereto. Apart from this they do not complaint of the denial of relief to Mathis or of the adjudication of costs against all appellants.

(1) The finding under Issue 5 and other facts proved as a matter of law support the judgment of the trial court and thus Issues 1, 2 and XI are immaterial. This conclusion is based on the following comments:

It was proved as a matter of law that the permit was issued to and was held by Mathis alone at the time the liquor was seized. The permit was issued in 1947 and it had been subsequently renewed by Mathis. Ti authorized Mathis to conduct a package store on the premises where the liquor was when seized.

It was also proved as a matter of law that the liquor was on the premises for sale by some one. This is established conclusively by the testimony of Mathis and of Evelyn Reeves. Indeed, appellants have not denied that the liquor was there for sale; they only claim that it was for sale by Mathis.

Forfeiture is provided for in Sec. 42 of the Liquor Control Act and the property which may be forfeited is identified by the definition of the term 'illicit beverage'. This term is defined in Subdivision (4) of Section 3a of the Act as meaning, among other things, 'any alcoholic beverage possessed, kept, stored * * * with intent to * * * sell * * * in violation of the provisions of this Act.'

If the seized liquor was in the T. S. Mathis Package Store for sale by one except Mathis, the holder of the permit to operate the store, it was necessarily 'possessed, kept, stored * * * with intent to * * * sell * * * in violation' of the Act, that is, was necessarily an illicit beverage within the meaning of Subdivision (4) of Section 3a and was subject to forfeiture under Section 42. This is a consequence of the following provisions of the Liquor Control Act. Subdivision (a) of Section 4 of the Act makes it unlawful for anyone to 'possess for the purpose of sale * * * store * * * any liquor in any wet area without first having procured a permit of the class required for such privilege.' Subdivision (8) of Section 15, among other things, authorizes the holder of a package store permit (that is, Mathis) to sell liquor on or from licensed premises (that is, the T. S. Mathis Package Store) at retail to consumer for off premises consumption only. Subdivision (22) of Section 17 provides that 'It shall be unlawful for any person to * * * exercise any privilege granted by a permit except at the place, address, premise, or location for which the permit is granted,' with exceptions not material on this appeal. Subdivision (23) of Section 17 provides that 'It shall be unlawful for any person to consent to the use of or to allow his permit to be displayed by or used by any person other than the one to whom the permit was issued.'

Thus, to perfect the right to forfeit the liquor, it was only necessary for the State to establish the fact that the liquor was in the store for sale by somebody other than Mathis, the permit holder, and this fact was established by the jury's finding under Issue 5.

The jury found in response to Issue 5 that a written statement which Mathis made to an agent of the Board on the day of seizure was true. This statement shows that the liquor did not belong to Mathis, and since the proof showed as a matter...