Sullivan v. State

• Decision Date: 29 March 1911
• Citation: 136 S.W. 456
• Parties: SULLIVAN v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 456

SULLIVAN v. STATE.

Court of Criminal Appeals of Texas.

March 29, 1911.

Rehearing Denied April 26, 1911.

Appeal from Grayson County Court; J. Q. Adamson, Judge.

Frank Sullivan was convicted of unlawfully keeping a disorderly house, and he appeals. Affirmed.

J. L. Cobb and Wm. Mathis, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

By complaint and information it was charged that the appellant, on or about December 8, 1909, in Grayson county, Tex., "did then and there unlawfully keep and was concerned in keeping, and did aid, assist, and abet in keeping, a disorderly house in a certain house, building, edifice, and tenement then and there situated, in this: That he did then and there unlawfully keep and was concerned in keeping, and did aid, abet, and assist in keeping, said certain house, building, edifice, and tenement there situate, in which spirituous, vinous, and malt liquors were sold and kept for sale, without a license first having been obtained under the laws of Texas to retail such liquors, and in which said appellant then and there unlawfully sold and kept for sale, spirituous, vinous, and malt liquors, without having first obtained a license under the laws of Texas to retail such liquors." The complaint and information were made and filed December 9, 1909. The case was not tried until November 9, 1910.

The record shows that the court gave a verbal charge. There is no exception whatever thereto, nor were any special charges requested. This court will therefore conclusively assume that the charge covered every phase of the case necessary or proper to be submitted. The appellant was convicted, and his penalty assessed at $200 fine and 20 days in jail.

The only complaint is that the evidence was insufficient to sustain the conviction. We will therefore give the substance in full of the testimony. Seven witnesses, to wit, Greer, apparently a disinterested witness, Kirk, Kidd, and Howard, each a deputy sheriff of Grayson county, Rich, the sheriff, Binkley, a minister of the gospel, and Stark, the constable of the precinct, each testified that they knew the general reputation of the house kept and run by the appellant, which was clearly identified as situated in Sherman, on the corner of certain streets, in Grayson county, Tex., and that the general reputation of the place was one where intoxicating liquors were sold and kept for sale. There was no dispute whatever on this point. It was also clearly shown, without dispute, that this certain house was kept and run and operated by the appellant at the time charged in the information, and for several years prior thereto, in which were situated a barber shop, a pool room, where negroes resorted to play pool, and a lunch counter, all in the same building and on the same floor, and that there was a door between the barber shop and the pool room.

Charles Greer testified: That he lived in Sherman, Grayson county, Tex., on December 8, 1909, and was at appellant's place of business, designating where it was in the city of Sherman on said date. When he got there, there were several darkies laughing and talking loud; some were swearing and cursing, engaged in conversation in different parts of the place, and some were playing pool. Appellant had been keeping a lunch counter in part of the house, and in another part was a negro barber shop, and he also kept a pool ball therein. When he went there, he was in search of whisky, but did not buy any right then; he was talking with a negro boy named Alex, who had been working there in the house awhile before that. He did not know whether he was working there then or not. The witness was seated at the lunch counter; he got up and started away, telling Alex that he was going down to Mackey's to get some whisky. Alex said he did not have to go down there; that he could let him have some whisky, and they stepped out of the door and around the corner against the side of appellant's pool hall. He put his hand in his inside coat pocket, pulled out a half pint of whisky, and he gave him a half dollar for it. The witness drank it, or most of it. At appellant's place, at times, the negroes get pretty loud and make a great deal of noise. He did not buy any whisky from appellant at that place that day.

Kirk, a deputy sheriff of Grayson county, testified: Appellant was running a negro pool hall on December 8, 1909, and had been in the same business there for several years. "I have seen whisky and beer there—glasses and empty bottles there—frequently along about December 8, 1909. About this time I had several parties to complain to me about this place being noisy and disorderly, and was frequently called there about this as an officer to act in an official way."

Kidd, also a deputy sheriff of Grayson county, testified: That on December 8, 1909, he and Howard, another deputy sheriff of said county, had placed in their hands a search and seizure warrant, and went to appellant's place (identifying it) for the purpose of executing the warrant. They got there late in the evening—just after dark; they found the appellant there, and immediately began searching the premises; they found a number of bottles of whisky and beer in different parts of the house. In the barber shop, which is a part of the building, they found some four or five bottles of whisky in a grip. In the pool room they found several half pint bottles of whisky in a kind of safe; also some ice and several bottles of beer on it. This whisky was found behind the lunch counter in some pigeon holes used for canned goods; they also found some four or five half pint bottles of whisky there. In the back part of the pool room they found a great number of empty whisky bottles. Behind the lunch counter t...