Templin v. State, 3113

• Decision Date: 03 December 1954
• Docket Number: No. 3113,3113
• Citation: 274 S.W.2d 171
• Parties: Lewis B. TEMPLIN et ux., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 171

274 S.W.2d 171

Lewis B. TEMPLIN et ux., Appellants, v. The STATE of Texas, Appellee.

No. 3113.

Court of Civil Appeals of Texas, Eastland.

Dec. 3, 1954.

Rehearing Denied Jan. 7, 1955.

Gib Callaway, J. C. Darroch, Brownwood, for appellants.

Bill Allcorn, Dist. Atty., Firman Smith County Atty., Brownwood, Horace Wimberly, Asst. Atty. Gen., Austin, for appellee.

COLLINGS, Justice.

This suit was brought by the State of Texas against Lawis B. Templin and wife, Pauline Templin. It was alleged that the said defendants had on several specified dates in Brown County, Texas, a dry area, as that term is defined in the Texas Liquor Control Act, Vernon's Ann.P.C. art. 666-1 et seq., possessed for the purpose of sale various amounts and kinds of alcoholic liquors and that they were threatening to continue such violations unless restrained. Templin and wife filed answers denying such allegations and particularly denied that they were threatening or intended to sell, or to possess for the purpose of sale, any alcoholic beverages in Brown County in violation of the Texas Liquor Control Act.

The case was tried before a jury which found in answer to special issues that on November 17, 1953, both Lewis B. Templin and Pauline Templine possessed whiskey in Brown County, Texas, for the purpose of sale, and that on five other occasions prior thereto, extending back to September 13, 1950, said defendants possessed alcoholic liquors in Brown County, Texas, for the purpose of sale; that on November 20, 1953, the date this suit was filed, both Lewis B. Templin and Pauline Templin expected or intended thereafter to possess for the purpose of sale whiskey or other intoxicating liquors in Brown County, and that at the time of the trial both Lewis B. Templin and Pauline Templin expected or intended thereafter to possess for the purpose of sale whiskey or other intoxicating liquor in Brown County. Based upon the above findings of the jury, and the agreed fact that Brown County is and was at all times relevant hereto a dry area as that term is defined in the Liquor Control Act, the court entered judgment permanently enjoining and restraining said defendants from unlawfully selling, possessing for the purpose of sale, or offering for sale at any place in Brown County any and all alcoholic beverages in violation of the provisions of the Texas Liquor Control Act. Lewis B. Templin and Pauline Templin have appealed.

The State's petition for an injunction was filed on November 20, 1953. The evidence shows that on six different occasions beginning on September 13, 1950, and extending to November 17, 1953, appellants were found in possession of whiskey, wine and gin in such dry area in quantities ranging from three and a half pints to twenty-two pints. The possession of such amounts of intoxicating beverages on such occasions was prima facie evidence that it was possessed for the purpose of sale. Article 666, Sec. 23a, (2) Texas Penal Code.

On one of the occasions the whiskey and gin was found hidden under appellants' bedroom floor under a trap door concealed by a throw rug. On another occasion it was found in the bathroom wall behind a medicine cabinet constructed in such manner that a false back in the medicine cabinet could be used as a sliding door or panel opening into a secret liquor compartment behind the cabinet.

This evidence, in our opinion, supports the verdict and the judgment that appellants at all times in question possessed intoxicating liquor for sale. The past course of action of appellants in possessing intoxicating liquor for sale, which the evidence shows to have continued until three days prior to the filing of this suit, is evidence of their intention in this regard at the time of the trial. In a civil case, as the one here under consideration, such evidence is sufficient to support the jury finding that at the time of the trial appellants intended thereafter and in the future to possess intoxicating liquor for the purpose of sale. Jeter v. State, Tex.Civ.App., 171 S.W.2d 192 (Err. Ref. W. O. M.); Jeter v. State, Tex.Civ.App., 184 S.W.2d 716; Lindsey v. State, Tex.Civ.App., 194 S.W.2d 413 (Err. Ref. N.R.E.); McClain v. State, Tex.Civ.App., 235 S.W.2d 947 (Err. Ref. N. R. E.); Winfield v. State, Tex.Civ.App., 231 S.W.2d 896; State v. Crystal Club, Tex.Civ.App., 177 S.W.2d 110; Walker v. State, Tex.Civ.App., 173 S.W.2d 741; United States v. Budar, 7 Cir., 9 F.2d 126; Engler v. United States, 8 Cir., 25 F.2d 37; Vance v. State, Tex.Civ.App., 179 S.W.2d 436; Lorance v. State, Tex.Civ.App., 179 S.W.2d 1015. We overrule appellants' points complaining of the admissibility and sufficiency of such evidence.

Appellant, Lewis B. Templin, on cross-examination, admitted that he had entered a plea of guilty to the offence of possessing intoxicating liquor for the purpose of sale in connection with the occasion when officers testified that liquor was found on premises occupied by him in Brown County on November 17, 1953. Templin testified, however, that such plea was obtained by duress, in that, the officers on such occasion...