State v. Birdette
| Decision Date | 27 May 1942 |
| Docket Number | No. 7971.,7971. |
| Citation | 162 S.W.2d 932 |
| Parties | STATE v. BIRDETTE et ux. |
| Court | Texas Supreme Court |
Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, W. Pirtle Watts, Ocie Speer, Fred C. Chandler, and M. C. Martin, Asst. Attys. Gen., Sam Cleveland, Dist. Atty., and Clint Barham, Co. Atty., both of Stephenville, for petitioner.
C. O. McMillan, G. H. Williamson, and Charles Nordyke, all of Stephenville, for respondent.
This is an injunction action filed in the District Court of Erath County, Texas, by the State of Texas, acting by its proper officers, against Mr. and Mrs. Alton (Lefty) Birdette. The State's petition seeks both a temporary and a permanent injunction against Mr. and Mrs. Birdette, restraining them, and each of them, from violating the Texas Liquor Control Act, Vernon's Ann. P.C. art. 666—1 et seq., in Erath County, and in and on certain described premises in such county. The State's petition is duly verified. It seeks no temporary injunction, except upon notice and hearing. In this connection, the petition prays: "Wherefore, premises considered, plaintiff prays that this Honorable Court grant an order ordering the district court to notify the defendants Alton `Lefty' Birdette and Mrs. Alton `Lefty' Birdette to be and appear before this court on the 30th day of October, A. D. 1941, then and there to show cause, why a temporary injunction should not be granted against them and each of them, enjoining and restraining them from unlawfully selling whiskey and unlawfully possessing same for the purpose of sale on and from the premises herein described and from operating and maintaining said place and premises as a nuisance, as said term is defined by the Texas Liquor Control Act and from violating the provisions of said act within the boundaries of Erath County, Texas, at the courthouse in the City of Stephenville, Erath County, Texas."
Upon the presentation of the above petition to him, the Judge of the District Court of Erath County, Texas, entered a show cause order, and set the trial on the application for temporary injunction for October 30, 1941, at Stephenville. Notices to Mr. and Mrs. Birdette were duly issued.
It appears that the trial on the application for temporary injunction only was had on October 31, 1941. Mr. and Mrs. Birdette duly answered by written answer, and were represented at the trial by counsel. At the trial the State assumed the laboring oar. Only State witnesses were heard. The material evidence offered by the State shows: That on June 4, 13, and 14, 1941, respectively, J. A. McBride, an employee of the Texas Liquor Control Board, purchased a pint of whiskey from Mr. Birdette; that on June 13, 1941, McBride purchased a pint of whiskey from Mrs. Birdette; and that such purchases were made on the premises described in the State's petition, in Erath County. It is then shown that on July 1, 1941, the Birdette's premises were searched by authority of a search warrant, and one pint of whiskey and eighteen cans of beer were found thereon. As shown by the Court of Civil Appeals, the possession of this quantity of intoxicating liquors was not prima facie a violation of law. The whiskey and beer last above mentioned were taken by the officers making the search. It is shown that Erath County, as a whole, was local option territory, wherein the sales of all kinds of intoxicating liquors were prohibited. The State's petition was filed on October 24, 1941, some three months and twenty-three days after the search of the defendants' premises, and more than four months after the last sale by either of the defendants. No violation of law...
To continue reading
Request your trial
-
Barker v. Coastal Builders
...remand the case to the trial court for a new trial. Lowry v. Anderson-Berney Building Co., 139 Tex. 29, 161 S.W.2d 459; State v. Birdette, 139 Tex. 357, 162 S.W.2d 932; State v. Gray, 141 Tex. 604, 175 S.W.2d 224; Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Najera v. Great Atlantic & P......
-
State of Texas v. Continental Distilling Sales Co.
...9 Cir., 125 F.2d 498; State v. Crystal Club, Tex.Civ.App., 177 S.W.2d 110; Jeter v. State, Tex.Civ.App., 184 S.W.2d 716; State v. Birdette, 139 Tex. 357, 162 S.W.2d 932; Walker v. State, Tex.Civ.App., 173 S.W.2d 741; Art. 667-27, Vernon's R.S.Texas. Prior to 1937 a proceeding against an iss......
-
McMahon v. State, 11956.
...filing of this suit," and cites in support thereof these authorities: Birdett v. State [Tex.Civ. App.], 158 S.W.2d 902; [State v. Birdette, 139 Tex. 357], 162 S.W.2d 932; Engler v. United States [8 Cir.], 25 F.2d 37; Jeter v. State [Tex.Civ.App.], 171 S.W.2d 192, writ refused; Jeter v. Stat......
-
Halliburton v. Texas Indemnity Ins. Co.
...trial. Najera v. Great Atlantic & Pacific Tea Co., Tex., 207 S.W.2d 365; State v. Gray, 141 Tex. 604, 175 S.W.2d 224; State v. Birdette, 139 Tex. 357, 162 S.W.2d 932; Lowry v. Anderson-Berney Bldg. Co., 139 Tex. 29, 161 S.W.2d 459; Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d Since......