McClain v. State, 2835
| Decision Date | 12 January 1951 |
| Docket Number | No. 2835,2835 |
| Parties | McCLAIN et ux. v. STATE. |
| Court | Texas Court of Appeals |
Wm. O. Breedlove, Brownwood, for appellants.
David J. Morris, County Atty., Brownwood, C. B. Kennelly, Asst. Atty. Gen., for appellee.
This suit was filed on July 19, 1949. On August 25, 1949, the State filed an amended petition complaining of Neil McClain and wife, 'Louise.' The State alleged that Brown County was a dry area in which the sale and possession of intoxicating liquors for the purpose of sale was prohibited. The State sought to enjoin defendants and their employees from maintaining a common nuisance at a place described, which was an army building used as a dance hall known as 'Neil's Place,' on the Brown-wood-Coleman Highway in Brown County. The State alleged said premises were then, and for several months had been, operated and maintained as a common unisance and that Neil McClain was threatening to and would continue violating the Texas Liquor Control Act, Vernon's Ann.P.C. art. 666-1 et seq., and to use said building as a place where the liquor laws were violated unless enjoined from so doing; that defendant 'Louise' McClain was made a party because of her interest in the premises. It was specifically alleged that Neil McClain at said place unlawfully sold whiskey to H. W. Spencer of August 7, 1949; that he sold whiskey there to James E. Dale on the 6th of August, 1949; that on June 18, 1949, he unlawfully possessed whiskey and gin for the purpose of sale at said place; that on the 6th of August, 1948, Neil McClain unlawfully possessed whiskey and gin at said place for the purpose of sale and that on the 28th of March, 1948, he unlawfully possessed whiskey for the purpose of sale at said place; that on the 23rd of November, 1947, the 19th of November, 1947, the 17th of October, 1947 and on the 14th day of August, 1947, he unlawfully possessed whiskey for sale at said place, wherefore, the State prayed that Neil McClain and wife, 'Louise' be enjoined from maintaining a common nuisance at said place and that Neil McClain, his agents, servants and employees be enjoined from selling and offering for sale intoxicating liquors at said place and that the building be padlocked for one year.
The jury found that (1) Neil McClain sold whiskey at said place to Spencer on August 7, 1949; (2) and to Dale on the 6th of August, 1949, as alleged. (4) It also found that on the 19th of July, 1949, the day this suit was filed, Neil McClain intended to thereafter sell or possess for the purpose of sale intoxicating liquors in Brown County; (5) that Neil McClain, at the time of the trial, expected and intended thereafter to sell and possess for the purpose of sale whiskey or intoxicating liquors in Brown County.
The judgment recited said findings and also that the court found from the undisputed evidence that Neil McClain and wife, Winnie McClain, owned the building known as Neil's Place; that said building was maintained by Neil McClain as a common nuisance from December, 1947, until August, 1949, and that he had been guilty of violating the Liquor Control Act in so maintaining said building. The court found that one month prior to July 19, 1949, when this suit was filed, Neil McClain violated the Liquor Control Act in Brown County at said premises and that at the time of the filing of this case and on April 10, 1950, when this cause was tried, he was about to, and intended to, violate the provisions of said act in Brown County on said premises. A temporary injunction was made permanent and Neil McClain and his employees were enjoined from unlawfully selling, possessing for sale or offering for sale, at said premises, or elsewhere in Brown County, alcoholic beverages in violation of the Liquor Control Act and from maintaining or permitting the maintenance of said premises as a common nuisance and said premises were ordered closed for one year. Neil McClain and his wife, Winnie McClain, have appealed.
The substance of appellants' first two points is that the court erred in overruling their general demurrer and exception to the amended petition. Rules Civil Procedure 90 provides, 'General demurr...
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