Opinion
No. 32662.
April 12, 1937. Suggestion of Error Overruled May 10, 1937.
1. INTOXICATING LIQUORS.
In proceeding to abate liquor nuisance, decree dismissing bill on ground that evidence was insufficient to sustain it held against great preponderance of evidence (Code 1930, sec. 2007).
2. DEPOSITIONS. Intoxicating liquors.
Proceeding by state, on the relation of district attorney, to abate liquor nuisance was civil cause, and defendant could have taken depositions of any witnesses outside state who would support defendant's testimony (Code 1930, sec. 2007).
3. INTOXICATING LIQUORS.
In proceeding by state, on the relation of district attorney, to abate liquor nuisance, evidence that defendant's place of business had general reputation of being one where intoxicating liquors were kept for use and sale held competent, where it was secondary and supplementary (Code 1930, sec. 2007).
APPEAL from chancery court of Neshoba county. HON. T.P. GUYTON, Chancellor.
W.D. Conn, Jr., Assistant Attorney-General, for appellant.
Under the statute, section 2007, Code of 1930, it is not essential to sustain padlock proceedings to show that the defendant has been convicted of any offense against the prohibition statutes. It is only necessary to show that intoxicating liquor "is kept or possessed" on the premises. The state, in this case, however, charged convictions and then proceeded to prove them. In other words, the state showed at least three adjudications and the court should not allow a solemn adjudication of the court to be explained away by the interested party. His testimony with reference to why he pleaded guilty should not have any weight, either with the trial court or this court here. The defendant's own testimony shows that he was engaged in liquor traffic at his place of business and this, coupled with the testimony of the state, shows without any doubt that liquor was habitually kept or possessed on the premises and that he was well acquainted with all the subterfuges and evasions of the bootlegger and on the evidence which was before the court the state submits that the court decided contrary to the great and overwhelming weight of the evidence and that its judgment should be reversed and an order entered here, granting the relief prayed for in the original bill for injunction.
A.B. McCraw, of Philadelphia, for appellee.
A common or a public nuisance is defined by Words and Phrases, Fourth Edition, as a place of public resort or a place frequented by people who habitually violate the liquor and gambling laws.
Maintaining a nuisance implies continuity of the action for a substantial period.
293 Fed. 381; 139 N.E. 589.
The statute relied upon by the state simply makes any place, meaning in the judgment of the writer a place of business where liquors are found kept or possessed, shall be deemed a common nuisance and may be abated by a writ of injunction issued out of court of equity, etc. The word "kept" or "possess" in said statute means continuously kept and also means a continuing transaction. In other words, the fact that liquor was found on the premises on one occasion is not sufficient, and before the state would be entitled to injunctive process they must show that the said liquor was continuously kept on the premises.
293 Fed. 381; 139 N.E. 589.
The word "kept" also means kept for sale, as it is impossible for a person or his place of business to become a common or public nuisance unless he is dealing to the public the thing complained of. In other words, the word "kept" means that the liquor is kept for sale, barter or to be given away for commercial purposes.
6 R.C.L., Perm. Supp., 3911; 10 A.L.R. 1548; 254 U.S. 88; Blakemore on Prohibition, 1925 Edition, page 395; Singer v. U.S., 288 Fed. 695.
The appellee submits that before the state is entitled to injunctive process to close the place of business of any person, it is not only necessary to show that the liquor was kept in said place of business continuously and habitually for a definite period but that it must show that the defendant continues to keep said liquor in said place of business and that it must also show that the said liquor is kept for commercial purposes and to be dealt to the public; that an individual may be guilty of the crime of possessing liquor, each and every day, but that unless he deals this liquor to the public, either by sale, barter or giving it away, then he is nothing more than a criminal, that he is not in any sense a common or public nuisance.
Blakemore on Prohibition, 1927 Edition, page 635; 147 N.E. 276.
Appellee further submits that the evidence fails to show that liquor was ever found or ever kept in the place of business at any time; that the only evidence as to liquor having been even in the building was the time when two pints were found in the bedroom of appellee; that the only time that liquor was ever found on the premises anywhere near the place of business was the time that the liquor was found in the garage, several steps from the place of business, which liquor, according to the evidence of the record, was being transported from Kentucky to New Orleans, and appellee only stopped at his home for the purpose of getting a tire repaired, and not for the purpose of unloading any of the liquor.
The defendant or appellee, Grady White, was guilty of no violation of law in transporting the liquor found in his car and garage, for it has been held many times that liquor may be transported from one wet state through a dry state into another wet state.
U.S. v. Gudger, 249 U.S. 373, 63 L.Ed. 653; 3 R.C.L. Supplement.
The State, on the relation of the district attorney of the judicial district in which Neshoba county is situated, filed its bill against Grady White and Mrs. Annie White, under the authority of section 2007, Code of 1930, to abate as a nuisance Grady White's place of business, which he had leased from Mrs. Annie White, upon the ground that he kept intoxicating liquors therein for use and sale. The cause was tried on bill, answer, and proofs, resulting in a decree dismissing the bill upon the ground that the evidence was insufficient to sustain it.
We are of the opinion that the finding of the chancellor must be reversed because it is against the great preponderance of the evidence. As we view the record there is little, if any, substantial evidence to sustain the decree. Section 2007 denounces as a common nuisance any place or room where intoxicating liquors are kept, and provides that such a nuisance may be abated by a writ of injunction upon bill filed in the name of the State by the Attorney General, or any district attorney, or county attorney whose duty requires him to prosecute criminal cases on behalf of the State, and that all rules of evidence and practice and procedure pertaining to courts of equity generally shall apply in such cases.
The evidence showed without dispute the following facts: On the 21st of September, 1935, there was an authorized raid of Grady White's place of business. Two pints of whisky were found in the back room of his store, and thirty or forty feet away, in his garage, 468 pints of whisky were found, some of it in his automobile and some of it elsewhere. As a result of this raid he pleaded guilty to a violation of the liquor laws and was fined $300 and costs, which he paid. On March 6, 1936, his place of business was again raided. Sixteen pints of whisky were found near the store, seven pints in a bucket just across the road about thirty steps therefrom, and nine pints in a hole dug in the ground, covered with leaves, and about fifty-five steps from the store. A path led from the store to this place. As a result of this raid, White was charged with violating the liquor laws, was convicted, and fined $150 and costs; from that judgment he appealed.
In addition, fourteen witnesses testified that White's place of business had the general reputation of being one where intoxicating liquors were kept for use and sale in violation of law. The only evidence in defense was that of Grady White himself. He admitted that the two pints of whisky found in the back room of the store were his, which he claimed he had for his own use. He denied that the sixteen pints of whisky belonged to him, or that he had any knowledge of its presence near his place. With reference to the 468 pints found in his garage and automobile, he claimed that he was transporting it from Kentucky to New Orleans and stopped at his home to have a flat tire repaired; he said that it was for "a man in New Orleans," but neither gave his name, nor the name of the person, firm, or corporation from which he obtained the liquor in Kentucky. This is a civil cause, and White could, under the law, have taken the depositions of any witnesses in Louisiana and Kentucky who would support his testimony. If his testimony was true, there must have been such witnesses. His story that he was a mere carrier of the whisky for others, under the facts and circumstances, was most unreasonable. His claim is that it was no violation of the law of this state to transport liquor through the state "from one wet state to another." It is not necessary to decide that question.
It is contended that the reputation evidence was incompetent. It might be if it was the only evidence. Where, as here, it is secondary and supplementary, it is competent. Chamberlayne's Modern Law of Evidence, vol. 4, sec. 2740; 3 Wigmore (2 Ed.), sec. 1620, par. 3. Handy v. State, 63 Miss. 207, 56 Am. Rep. 803, is not authority to the contrary. Handy was indicted and convicted for keeping a bawdyhouse. The only evidence for the state was that the defendant's house had the general reputation of being a bawdyhouse, and that the general character of the inmates thereof for chastity was bad. There was no direct evidence that the place was a bawdyhouse. Reputation, therefore, was not offered as supplementary evidence. The court held that reputation as to the house was incompetent, but as to the inmates was competent.
Reversed and judgment here, and remanded.