Moore v. State

• Decision Date: 22 December 1915
• Docket Number: (No. 2315.)
• Citation: 181 S.W. 438
• Parties: MOORE v. STATE.
• Court: Texas Supreme Court

Page 438

181 S.W. 438

MOORE v. STATE.

(No. 2315.)

Supreme Court of Texas.

December 22, 1915.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Proceedings by the State against Mrs. J. F. Moore and another. From a judgment for plaintiff, defendants appealed, and the Court of Civil Appeals certifies to the Supreme Court whether the defendant named was subject to an injunction. Question answered affirmatively.

Slay, Simon & Wynn, of Ft. Worth, for appellant. John W. Baskin, of Ft. Worth, for the State.

PHILLIPS, C. J.

The certificate of the honorable Court of Civil Appeals, with the question submitted, is as follows:

"This is an appeal by Mrs. J. F. Moore and W. C. Blackmon from the following order of the district court of Tarrant county: `It is therefore ordered, adjudged, and decreed by the court that the said defendants, Mrs. J. F. Moore and W. C. Blackmon, are hereby temporary [temporarily] enjoined from using the house known as 1205½ Houston street in the city of Ft. Worth for the purpose of keeping, or being interested in the keeping of a bawdy or disorderly house therein.' The trial court made no findings of fact, but the evidence is sufficient to support the conclusion that appellant W. C. Blackmon, who was the rental agent of appellant Mrs. Moore, knowingly permitted the house to be used for the purpose prohibited by law. There is nothing in the evidence to indicate that he was otherwise concerned in the keeping of such house further than such knowledge upon his part that the house was being so used made him interested in the same. As to appellant Mrs. Moore, the evidence fails to show any connection whatever with the keeping of the house, or that she knowingly permitted the same, unless the knowledge of her agent Blackmon should, in law, be imputed to her and render her also liable. (For a fuller statement of the evidence and as explanatory of our question reference is made to the brief statement of facts.)

"We, therefore, certify to your honors whether or not, under the act of the Thirtieth Legislature (1907, p. 246), authorizing the enjoining of `the habitual, actual, threatened, or contemplated use of any premises, place, building, or part thereof, for the purpose of keeping, being interested in, aiding or abetting the keeping of a bawdy or disorderly house,' the writ in this instance was properly issued?"

The action appears to have been brought by the county attorney under articles 4689 and 4690 of the Revised Statutes of 1911, which read:

"Art. 4689. * * * The habitual, actual, threatened or contemplated use of any premises, place, building or part thereof, for the purpose of keeping, being interested in, aiding or abetting the keeping of a bawdy or disorderly house, shall be enjoined at the suit of either the state or any citizen thereof. Any person who may use, or who may be about to use, or who may aid or abet any other person in the use of any premises, place or building or part thereof, may be made a party defendant in such suit; provided, that the provisions of this and the succeeding article shall not apply to nor be so construed as to interfere with the control and regulation of bawds and bawdyhouses by ordinances of incorporated towns and cities acting under special charters and where the same are actually confined by ordinance of such city within a designated district of such city.

"Art. 4690. * * * The Attorney General and the several district and county attorneys shall institute and prosecute all suits that said Attorney General or such district or county attorney may deem necessary to enjoin such use; provided, that such suit may be brought and prosecuted by any one of such officers; and provided, further, that nothing in the above proviso contained shall prevent such injunction from issuing at the suit of any citizen of this state who may sue in his own name; and such citizen shall not be required to show that he is personally injured by the acts complained of; and the procedure in all cases brought hereunder shall be the same as in other suits for injunction, as near as may be; provided, that, when the suit is brought in the name of the state by any of the officers aforesaid, the petition for injunction need not be verified."

These articles are from the act of 1907, (Acts 1907, p. 246).

The present criminal statute in relation to the keeping of bawdyhouses (article 500 of the Penal Code, as amended by the same act) reads:

"Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, a bawdyhouse or a disorderly house, in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdyhouse or a disorderly house in any house, building, edifice or tenement owned, leased, occupied or controlled by him, directly as agent for another, or through any agent, shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the case may be, a bawdyhouse or a disorderly house, as the case may be, and, on conviction, shall be punished by a fine of two hundred dollars, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such bawdy or disorderly house."

In answering certified question our practice is to confine ourselves to the statement of the case as contained in the certificate of the Court of Civil Appeals, since it must be assumed that it embodies the essential facts upon which the certified question is predicated. We customarily decline to look to the statement of facts, if it accompanies the certificate; and we shall therefore determine the present question simply upon the facts recited in the certificate.

As to the defendant Blackmon, under the statement of the Court of Civil Appeals that the evidence adduced upon the hearing was sufficient to warrant the conclusion that, as the agent of the owner of the premises, he knowingly permitted the house to be used for the unlawful purpose, we think there can be no question as to the injunction having been properly issued. Penal Code, art. 500, attaches criminal liability to any one who shall, "as agent for another," keep or knowingly permit the keeping of a bawdyhouse in any house leased or controlled by him. The Court of Criminal Appeals has held that knowingly permitting the keeping of such a house is simply a method of committing the offense of "keeping," and is not in itself a distinct offense. Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Schulze v. State (Cr. App.) 56 S. W. 918. Under this ruling, the evidence in relation to Blackmon would have made him subject to criminal prosecution for keeping a disorderly house by knowingly permitting it to be kept for that purpose. From the nature of the act of 1907, which comprises the articles we have quoted, it inevitably follows that any one subject to prosecution for keeping a bawdyhouse, under the Penal Code, is subject to an injunction, under article 4689, for the purpose of restraining such unlawful use of premises. It is hardly logical to conclude that this statute, enacted in aid of the criminal law, is narrower in its operation than the criminal statute, and is without application to one amenable to the criminal law on the same subject.

Whether the injunction rightfully issued against the defendant owner of the premises, who, prior to the institution of the suit, appears to have had no knowledge that they were being used for the wrongful purpose, presents a more difficult question; but, after a careful consideration, in the light of general principles and the statute, we are convinced that she was, at least, a proper party to the proceeding, and the issuance of an injunction running against her, as well, was therefore not unauthorized. If this had been a criminal prosecution against the owner, knowledge on her part of the unlawful use of the premises would clearly have been essential to justify conviction. But the proceeding was not of that nature. It was a civil suit for the suppression of a public nuisance by means of a civil remedy. The object of the statute would be defeated if the elements necessary to constitute the criminal offense must exist in order for it to apply. Its purpose was a broad one, and it should be given a construction which is consonant with that purpose.

At this place it is well to recur to the holding in Marsan v. French, 61 Tex. 173, 48 Am. Rep. 272, the opinion having been rendered by Judge Stayton, a case wherein damages were sought against an owner of premises which it was charged he permitted to be used for the purposes of prostitution to the injury of the plaintiff, whose home was adjacent, and in which by the charge of the court a recovery for the plaintiff was authorized only upon its being proved to the satisfaction of the jury that the defendant not only let the premises to prostitutes knowing them to be such at the time, but that he rented them to such persons for such use, etc. In commenting upon the charge, it was said:

"This charge was more favorable to the appellant than a correct application of the law would justify. * * * The rules applied by the court in this case were such as would be applicable in a criminal prosecution for letting premises to be used as a place of prostitution, and it may well be questioned whether rules so stringent should be applied in civil causes, in which questions of knowledge and intent are often of but little or of no importance."

It is the "use" of premises for the unlawful purpose named, habitual, actual, threatened, or contemplated, at which article 4689 is leveled. It is such "use" which it is designed to prevent by the civil remedy which it supplies. It is altogether an impersonal statute. It is not a statute in relation to parties to suits, and does not attempt to prescribe who shall constitute the parties defendant...