McMahon v. State, 11956.

• Decision Date: 18 February 1948
• Docket Number: No. 11956.,11956.
• Citation: 208 S.W.2d 682
• Parties: McMAHON et al. v. STATE.
• Court: Texas Court of Appeals

208 S.W.2d 682

McMAHON et al. v. STATE.

No. 11956.

Court of Civil Appeals of Texas. Galveston.

February 18, 1948.

Appeal from District Court, Anderson County; V. M. Johnston, Judge.

Suit by the State of Texas against Orbie McMahon and others to enjoin sale of liquor and for other relief. From a judgment granting a temporary injunction, the defendants appeal.

Affirmed.

John B. McNamara and C. S. Farmer, both of Waco, and B. R. Reeves, of Palestine, for appellants.

Price Daniel, Atty. Gen., William S. Lott, Artie P. Stephens, and Clarence Y. Mills, Asst. Attys. Gen., John Dowdy, Dist. Atty., of Athens, and Franklin C. Williams, Co. Atty. of Palestine, for appellee.

GRAVES, Justice.

This general statement — edited here in immaterial respects only — is, in substance, taken from the appellee's brief:

This is an appeal by defendants below, appellants here, from the interlocutory order of the trial court, granting a temporary injunction against the appellants, Orbie McMahon, Pat Morris, Charlie Lee Smith, and Oscar (Red) Price, in favor of the State of Texas, enjoining them: (1) from maintaining and assisting in maintaining a nuisance, as that term is defined by the Texas Liquor Control Act, Articles 666-1 et seq., and 667-1 et seq. Vernon's Ann.Penal Code of Texas, and by Article 4664, R.C.S. of Texas, on, at, and from the premises described in appellee's petition; (2) from unlawfully selling, possessing for the purpose of sale, and transporting, any and all intoxicating beverages in any place in Anderson County, Texas, and (3) from violating any of the provisions of the Texas Liquor Control Act in any way, or in any manner, in Anderson County, Texas. It was admitted that Anderson County was a "dry area", as that term is defined by the Texas Liquor Control Act, at all times relevant to this cause.

The State, as plaintiff below, had filed its suit herein on October 2nd of 1947, against the appellants as defendants, alleging that Anderson County was a "dry area" within the meaning of the Liquor Control Act; that a building located at 600 West Oak Street in Palestine was being operated as a nuisance; that Ivy Lee Morris, Pat Morris, Orbie McMahon, and Charlie Lee Smith, were aided in maintaining and operating the premises as such a nuisance by Price and Marshall Morris; that the First National Bank of Palestine owned a vendor's lien on the property, and that J. K. Selden, under a lease or rental-agreement, used part of it as a garage.

It declared-upon 19 specific violations of the Liquor Control Act by the parties so charged, in substance as follows:

1. On September 19, 1944 (2 years 11 months before filing petition for injunction), Oscar Price possessed whiskey for sale in Anderson County.

2. On July 4, 1946 (more than 1 year before filing petition for injunction), Marshall Morris sold whiskey in Anderson County.

3. On July 22, 1946 (more than 1 year before petition for injunction was filed), Pat Morris sold whiskey in said premises.

4. On July 7, 1946 (more than 1 year before petition for injunction was filed), Oscar Price sold whiskey to W. E. Russell on the above described premises.

5. On July 22, 1946 (more than one year before filing petition for injunction), Oscar Price sold whiskey to J. L. Hamilton on above described premises.

6. On March 22, 1945 (more than two years prior to filing petition for injunction), Pat Morris possessed, in Anderson County, whiskey for the purpose of sale.

7. On March 20, 1945 (more than two years prior to filing petition for injunction), Pat Morris sold whiskey in Anderson County, Texas.

8. On March 17, 1945 (more than two years prior to filing petition for injunction), Pat Morris sold whiskey in Anderson County, Texas.

9. On March 17, 1945 (more than two years prior to filing petition for injunction) Oscar Price sold whiskey in Anderson County, Texas.

10. On March 19, 1945 (more than two years prior to filing petition for injunction), Pat Morris sold whiskey in Anderson County, Texas.

11. On or about March 18, 1945 (more than two years before filing petition), Pat Morris sold whiskey to P. A. Thornbuy in Anderson County, Texas.

12. On or about March 18, 1945 (more than two years prior to filing petition), Oscar (Red) Price sold whiskey to P. A. Thornbuy in Anderson County.

13. On or about September 4, 1947 (28 days prior to filing petition), Charlie Lee Smith sold whiskey to J. T. Prewitt in Anderson County.

14. On or about February 8, 1942 (more than five years prior to filing petition), Pat Morris sold whiskey to Wallace Law in Anderson County.

15. On or about December 2, 1946 (10 months prior to filing petition), Pat Morris possessed, for the purpose of sale, whiskey on said premises.

16. On or about December 21, 1936 (nearly eleven years prior to filing petition), Orbie McMahon possessed whiskey for the purpose of sale in Anderson County.

17. On or about July 24, 1946 (more than one year prior to filing petition), Orbie McMahon possessed whiskey for the purpose of sale in Anderson County.

18. On February 4, 1947 (about eight months prior to filing petition for injunction), Orbie McMahon possessed whiskey for the purpose of sale (place of possession not alleged).

19. On April 3, 1947 (six months before filing petition for injunction), Orbie McMahon possessed whiskey for the purpose of sale on said premises.

Of such specific acts, these 5 only were so alleged to have been committed upon the premises — that is, the building at 600 West Oak Street in the City of Palestine — to-wit: Nos. 3, 4, 5, 15 and 19.

The parties, on appeal, agree that the substantive evidence heard by the court under such pleadings against the four appellants it so enjoined — that is, Orbie McMahon, Pat Morris, Charlie Lee Smith, and Oscar (Red) Price — respectively, was as follows:

"Orbie McMahon

"1. Orbie McMahon was arrested February 4, 1947, (eight months before the petition for injunction was filed) in connection with 21 pints of whiskey being found in his pick-up automobile parked across the street from the building involved.

"2. On April 3rd (year not shown) two pints of whiskey were found in automobile parked in the garage described in plaintiff's petition. Orbie McMahon, Pat Morris, and Charlie Lee Smith, were present at the garage when the whiskey was found.

"3. These eight complaints were filed against Orbie McMahon:

"a. Charging that on April 11, 1936, (more than ten years before petition for injunction was filed) McMahon maintained a room where beer was kept for purpose of sale. No disposition shown of case.

"b. Charging that on December 21, 1936, (more than ten years before petition for injunction was filed) McMahon possessed whiskey for the purpose of sale, and paid fine therefor.

"c. Charging that on March 11, 1937, (more than ten years before petition for injunction was filed), McMahon kept a common nuisance etc., for which he paid a fine.

"d. Charging that on April 23, 1937, (more than ten years before petition for injunction was filed), McMahon maintained a room where liquor was sold, etc., fined $25.00.

"e. Charging that on July 2, 1937, (more than ten years before petition was filed), McMahon maintained a place where intoxicating liquor was kept, etc., fined $25.00.

"f. Charging that on July 24, 1946, (more than one year before petition was filed), McMahon possessed liquor for purpose of sale — fined $100.00.

"g. Charging that on February 4, 1947, (eight months before petition was filed), McMahon possessed whiskey for purpose of sale. No disposition of case shown "h. Charging that on April 3, 1947, (six months before petition was filed), McMahon possessed whiskey for purpose of sale. Disposition of case not shown.

"Pat Morris

"1. On April 3 (year not shown), two pints of whiskey were found in a car parked in the garage at this building. He, together with Orbie McMahon and Charlie Lee Smith were at the garage at the time.

"2. These six complaints were filed against him as follows:

"a. Charging that on February 8, 1942, (more than five years before petition for injunction was filed), he sold whiskey, fined $100.00

"b. Charging that on March 22, 1945, (more than two years before petition for injunction was filed), he possessed liquor for purpose of sale, for which he paid a fine.

"c. Charging that on March 20, 1945, (more than two years before filing petition for injunction) he possessed intoxicating liquor for purpose of sale, for which he paid a fine.

"d. Charging that on March 17, 1945, (more than two years before filing petition for injunction), he sold whiskey, for which he paid a fine.

"e. Charging that on December 2, 1946, (10 months before petition for injunction was filed), he possessed whiskey for sale. Tried and acquitted by Jury.

"f. Charging that on April 3, 1947, (six months before petition for injunction was filed), he possessed whiskey for purpose of sale. Still pending.

"3. On March 22, 1945, (more than two years before filing petition for injunction), gin and whiskey were found at Dodd-Davis Filling Station (not the property described in petition for injunction), which was claimed by Pat Morris, and for which he paid a fine.

"4. On September 17, 1942 (more than five years before petition for injunction was filed), he was arrested in Jacksonville, Cherokee County, with some tax-paid whiskey in his pick-up truck. The record does not disclose whether or not a complaint was filed, and does not show disposition of the matter.

"Charlie Lee Smith

"1. On April 3rd (year not shown) two pints of whiskey were found in an automobile parked in the garage described in the petition for injunction, Charlie Lee Smith, Orbie McMahon, and Pat Morris, being present at said garage.

"2. On September 4, 1947 (28 days before petition for injunction was filed), J. L. Prewitt testified that he bought a pint of whiskey from Charlie Lee Smith, at the garage described in the petition for injunction.

"3. A complaint charging that on ...