Walker v. State

• Citation: 173 S.W.2d 741
• Decision Date: 21 June 1943
• Docket Number: No. 5560.,5560.
• Parties: WALKER v. STATE.
• Court: Court of Appeals of Texas

173 S.W.2d 741

WALKER v. STATE.

No. 5560.

Court of Civil Appeals of Texas. Amarillo.

June 21, 1943.

Rehearing Denied September 6, 1943.

Appeal from District Court, Lubbock County; E. L. Pitts, Judge.

Suit by the State against Gus Walker to enjoin defendant from violating the Liquor Control Act. Judgment for the State, and defendant appeals.

Affirmed.

Jimmie Cunningham, of Lubbock, for appellant.

Gerald C. Mann, Atty. Gen., of Texas, Geo. W. Barcus and W. P. Watts, Asst. Attys. Gen., of Texas, and Syrian Marbut, of Lubbock, for appellee.

STOKES, Justice.

This suit was instituted by the Attorney General and the County Attorney of Lubbock County on behalf of the State, its purpose being to enjoin the appellant, Gus Walker, from violating the provisions of the Texas Liquor Control Act, Title 11, Chapter 8, Article 666 — 1 et seq., Vernon's Ann.P.C. The original petition was filed May 4, 1942, and the case was tried before the court without the intervention of a jury on November 10, 1942. It was agreed that Lubbock County constituted an area in which the sale of intoxicating liquors was prohibited, and the uncontradicted testimony showed that appellant had violated the provisions of the Act by making sales of whiskey at his residence in Lubbock on March 22, 23, and 25, and April 15 and 16, 1942. It was also shown, without dispute, that on April 17, 1942, he was in possession of three pints of whiskey. The record shows that appellant was personally present in the courtroom during the trial and that he was represented by his counsel, but that he did not testify in person nor offer any testimony whatever in rebuttal of the testimony introduced by appellee. The trial resulted in a judgment perpetually enjoining and restraining appellant from possessing for the purpose of sale, selling, offering for sale, manufacturing, or bartering alcoholic beverages at his residence in Lubbock or any other place within the boundaries of Lubbock County. Appellant duly excepted to the judgment and has perfected an appeal to this court where he assails the judgment upon the grounds, first, that there was no evidence to support it, and, secondly, that courts of equity are without jurisdiction or authority to entertain suits to enjoin the commission of acts merely because they constitute crimes or penal offenses.

We think it is unnecessary to detail the testimony. It was shown without dispute that upon the dates mentioned appellant sold whiskey to, and received payments therefor from, witnesses who testified to that effect. The sales were made at his residence in Lubbock which is located within Lubbock County, and it was agreed upon the trial that Lubbock County is what is designated by the Liquor Control Act as a "dry area."

Appellant's principal contention seems to be that, because it was not shown he had violated the law since the suit was filed on May 4, 1942, several months having elapsed between that time and the date upon which the case was tried, nor that he was threatening to make other sales of intoxicating liquors, the presumption of innocence should be indulged in his favor, which necessarily implies he had repented, and, therefore, no injunction should be lodged against him. As we have said, appellant was personally present in court at the trial, as was also his attorney who cross-examined the State's witnesses. Not only did appellant fail to take the stand and deny the charges made against him by the State, but he failed to produce any other witness or testimony of any kind. He knew, of course, whether he intended further to violate the law or had reformed and entertained no such intention. Notwithstanding his peculiar knowledge in that respect, he did not favor the court with his own testimony or furnish any enlightenment whatever in regard to his intentions. Under such circumstances, the courts entertain a presumption that if evidence had been produced by him, it would operate against him and tend to corroborate that which had been offered by the State. Every intendment in favor of the opposite party is favored and indulged by the courts. Jeter v. State of Texas, Tex.Civ.App., 171 S.W.2d 192; Day v. Williams, Tex.Civ.App., 193 S. W. 239; Green v. Scales, Tex.Civ.App., 219 S.W. 274; Austin v. State, 113 Tex.Cr.R. 217, 18 S.W.2d 676; Wilkirson v. State, 113 Tex.Cr.R. 591, 23 S.W.2d 731; American General Ins. Co. v. Nance, Tex.Civ. App., 60 S.W.2d 280.

Appellant relies upon the case of Birdette v. State, 158 S.W.2d 902, wherein it was held by the Court of Civil Appeals of the Eleventh District that, although it was proved that specific sales of whiskey had been made in prohibited territory, such sales, in and of themselves, created no presumption that several months later, when the case was tried, the defendants were then threatening to create a nuisance or violate any of the provisions of the Texas Liquor Control Act. The court observed that the rule that a status or condition once shown to exist is presumed to continue is not applicable to violations of the law, but that a presumption of innocence prevails which necessarily implies that a former wrongdoer has repented. The Supreme Court affirmed that case, 139 Tex. 357, 162 S.W.2d 932, but its holding was based upon the finding by the Court of Civil Appeals that there was no evidence to support the judgment.

In the more recent case of Jeter v. State of Texas, supra, the Court of Civil Appeals which rendered the opinion in the Birdette case had...