Tacchini v. State

• Decision Date: 26 January 1910
• Citation: 126 S.W. 1139
• Parties: TACCHINI v. STATE.
• Court: Texas Court of Criminal Appeals

126 S.W. 1139

TACCHINI v. STATE.

Court of Criminal Appeals of Texas.

January 26, 1910.

On Motion for Rehearing, April 13, 1910.

Appeal from Grayson County Court; J. W. Hassell, Judge.

Felix Tacchini was convicted of keeping a disorderly house, and appeals. Affirmed.

E. J. Smith and Head, Dillard, Smith & Head, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was convicted in the court below upon an indictment containing 10 counts charging the keeping of a disorderly house on the several dates mentioned in the bill of indictment. He was convicted for being concerned in keeping a disorderly house on the 8th, 15th, and 17th days of November, 1908, and his punishment assessed at $200 fine and 20 days in jail for each of said dates. From this conviction he appeals to this court, and seeks a reversal upon several grounds.

The record is very voluminous, and contains 23 bills of exceptions. It is to be regretted that counsel for appellant has filed no brief in this court, and we are called upon to decide this case without being aided by any brief furnished by appellant. As before stated, the indictment contains 10 counts. The case, however, was submitted by the court below to the jury on the five grounds charging appellant with keeping and being concerned in keeping a disorderly house. The five counts charging appellant with knowingly permitting the house owned by him to be kept as a disorderly house were withdrawn from the consideration of the jury by the court, and the case submitted to the jury on the counts charging him with keeping a disorderly house on the 2d day of September, 1908, on the 2d day of October, 1908, on the 8th day of November, 1908, and on the 17th day of November, 1908, and, as before stated, he was convicted on three of these counts; that is, for the 8th, 15th, and 17th days of November. Appellant moved to quash the indictment in this case upon several grounds. One that the law was unconstitutional because it embraced more than one subject, and that the indictment alleges no offense known to the law as it is not unlawful for any one to sell spirituous or malt liquors with or without a license unless said liquor be intoxicating, and that there is no allegation that the liquors kept for sale were intoxicating liquors; that said indictment does not charge an offense because the defendant could not obtain a license under the laws of this state to retail liquors in a local option territory, because said law was superseded by the Baskin-McGregor law and also various other grounds to the failure of the grand jury to set out the particular facts that would constitute him owner, etc. Practically every objection that is raised in this case was raised in the Joliff Case, reported in 53 Tex. Cr. R. 61, 109 S. W. 176, in which Judge Ramsey in a very exhaustive opinion reviewed all the questions raised in this case on the sufficiency of the indictment and on the constitutionality of the act of the Legislature, making a person who should sell liquors without first obtaining a license the keeper of a disorderly house. We can add nothing to the opinion of the court in the Joliff Case, and therefore content ourselves by saying that the court below did not err in not quashing the indictment, and that the indictment alleged a violation of the law, and that the act under which the indictment was drawn is constitutional.

Complaint is made in the motion to quash that the bill of indictment failed to allege that the liquors kept for sale were intoxicating. The terms of article 359, Pen. Code 1895, as amended by Acts 30th Leg., c. 132, defining disorderly houses, does not use the word "intoxicating," but says a disorderly house is where spirituous, vinous, or malt liquors are kept for sale without first having obtained a license, etc. We therefore hold that it is not necessary for the pleader to allege that the liquors were intoxicating.

In the motion for new trial, counsel complain that the court erred in not giving the peremptory instruction requested by him to return a verdict of not guilty, because the evidence was insufficient to sustain the conviction. We cannot assent to appellant's contention that the evidence was insufficient. The evidence was abundantly sufficient that appellant himself, or through his agent, White, sold to different parties on the different dates mentioned whisky. The state not only proved that appellant was present when these sales were made, but that he had secured an internal revenue license from the federal government covering the period when these different sales were made. This license was procured on July 23, 1908, for one year for $25 and for the sale of whisky at 127 Main street, Denison, Tex. This was the place where the whisky was bought. This was the place where the defendant stayed. This place was known as his property, and he gave it in for taxation as the property of his wife. He was occupying the same as a place of business. Testimony of witness after witness was offered as to the general reputation of the house. He is shown not to have procured any license from the state of Texas for conducting business. We think the proof establishes beyond doubt that appellant was engaged in keeping a disorderly house in violation of the law, and that a jury could not do otherwise than convict him. He offered no proof in the trial of the case. As before stated, the record has a great number of bills of exceptions taken during the trial of the case to the introduction of the testimony and to the charge of the court.

The first bill of exceptions is to the action of the court in refusing to quash the bill of indictment.

The second bill of exceptions is to the action of the court in permitting the state to ask the witness Morrow, when on the witness stand, if he had ever had any business transaction in the house owned by appellant, meaning 127 West Main street, and the house in question, because the same was too remote, too general, and not confined to...