
    CLAUNCH v. STATE.
    (No. 4615.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.
    Rehearing Denied June 19, 1918.)
    1. Indictment and Information <®^j!68 — Issues and Proof — Separate Counts.
    Where jury convicted under two counts for keeping a disorderly house, but imposed one penalty only, the conviction will be sustained if the evidence was sufficient as to either or both.
    2. Intoxicating Liquors @=>15 — Statutes— Constitutionality.
    Pen. Code 1911, arts. 496, 500, making a house disorderly where liquor is sold or kept for the purpose of sale, so as to require the sellei to obtain an internal revenue license, are valid. 8. Intoxicating Liquors ⅞=^213 — Indictment — Sufficiency.
    An indictment for keeping a disorderly house where liquors are sold, in violation of Pen. Code 1911, arts. 496, 500, held sufficient.
    4. Intoxicating Liquors @=226 — Evidence —Reputation.
    In prosecution under Pen. Code 1911, arts. 496, 500, for keeping a disorderly house, a witness can testify to the general reputation of the house kept by the accused.
    5. Criminal Law @=>429(1) — Evidence—Internal Revenue License — Certified Copy.
    In prosecution for keeping a disorderly house in violation of Pen. Code 1911, arts. 496, 500, a certified copy of the record of the internal revenue license to accused as a retail malt liquor dealer which corresponded, as testified to by one witness, with a revenue license posted in appellant’s place of business, was properly admitted in evidence.
    6. Intoxicating Liquors @=>233(3) — Offenses — Evidence.
    Since keeping a disorderly house in violation of Pen. Code 1911, arts. 496, 500, is a continuing offense, witnesses may testify that they had seen posted in defendant’s place of business an internal revenue license about the time sales of liquor were made.
    7. Intoxicating Liquors @=>233(2) — Evidence.
    In a prosecution for keeping a disorderly house in violation of Pen. Code 1911, arts. 496, 500, the state was properly permitted to introduce in evidence labels on bottles of liquor purchased to the effect that the contents contained less than 2 per cent, alcohol, and giving the name of the brewer.
    Appeal from Eisher County Court; M. A. Hopson, Judge.
    W. W. Clauneh was convicted of keeping a disorderly house, and he appeals.
    Arnrmed.
    K. A. Watson, of Rotan, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRBNDERGAST, J.

Appellant was convicted of keeping a disorderly house under certain clauses of articles 496 and 500, P. C.

The indictment was in several counts. Only two were submitted; hence it is unnecessary to state anything about the others. One of those submitted was under this part of article 496, viz.:

“A ‘disorderly house’ is * * * any house located in any county * * * where the sale of intoxicating liquor has been prohibited under the laws of this state, in which such nonintoxicating malt liquor is sold or kept for the purpose of sale, as requires the seller thereof to obtain internal revenue license under the laws of the United States as a retail malt liquor dealer.”

And article 500, which is;

“Any person who shall directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, * * ⅜ a disorderly house, in any house, building, edifice or tenement, * * * shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the ease may be, * * * a disorderly house, * * * and on conviction shall be punished by a fine of $200.00, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such * * * disorderly house.”

One count, the third, alleged:

That appellant, “on or about the 26th day of January, 1917, in the county of Eisher, state of Texas, and anterior to the presentment of this indictment, did then and thero keep and was concerned in keeping, and knowingly permitted, to be kept, a certain house, building, edifice, and tenement, situated in said county and state after an election had been held by the qualified voters of said county, on tho 4th day of November, 1902, in accordance with the law to determine' whether or not the sale of intoxicating liquor should be prohibited in said county, and said election bad resulted in favor of prohibition in said county, and the commissioners’ court of said county had duly made, passed, and entered its order declaring the result of said election, and absolutely prohibiting the sale of intoxicating liquors within said county, as required by law, and the county judge of said county had caused said order to be published in the manner and form and for the length of time required by law, and that the said W. W. Clauneh did then and there, in said county and state, keep and was concerned in keeping, and knowingly permitted to be kept, the said certain house, building, edifice, and tenement for the purpose and in which nonintoxicating malt liquors wore sold and kept for the purpose of sale; as required the seller thereof, to obtain internal revenue license under tho laws of the United States as a retail malt liquor dealer.”

The other, fourth, made the same allegations about the election and prohibition being put in force as the one just above copied, and that:

“On or about January 26, 1917, W. W. Clauneh was then and there the proprietor and lessee of a certain house, building, edifice, and tenement wherein said proprietor and lessee, W. W. Clauneh, had posted and caused to be posted license issued by the United States of America authorizing said proprietor and lessee thereof to pursue the occupation and business of a retail malt liquor dealer.”

The jury convicted him under both counts, but imposed one penalty only. So that, if the evidence was sufficient as to either or both, conviction would be sustained.

This law itself and others like it in principle have so often been held valid and constitutional that we deem it unnecessary to discuss it, but merely cite some of the authorities. Johnson v. Elliott, 168 S. W. 968; Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Bumbaugh v. State, 55 Tex. Cr. R. 227, 116 S. W. 1152; Tachini v. State, 59 Tex. Cr. R. 55, 126 S. W. 1139; Sweeney v. State, 59 Tex. Cr. R. 370, 128 S. W. 390; Todd v. State, 60 Tex. Cr. R. 199, 131 S. W. 606; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, and a long line of decisions following that decision down to this date; Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Dupree v. State, 102 Tex. 455, 119 S. W. 301; Townsend v. State, 64 Tex. Cr. R. 350, 144 S. W. 628, Ann. Cas. 1914C, 814; Claunch v. State, 199 S. W. 483; Purity Extract & T. Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184; and a great many other authorities unnecessary to collate.

Both counts of said indictment were strictly in conformity to the statute and hoth good.

It has all the time and in many cases been held that a witness can testify that he saw hanging up in the accused’s place of business the internal revenue collector’s license as a retail malt liquor dealer, and that a witness can testify to the general reputation of such house kept by the accused. Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Johnson v. State, 69 Tex. Cr. R. 107, 153 S. W. 875; Milam v. State, 66 Tex. Cr. R. 249; 146 S. W. 185; and other cases cited by Mr. Branch in his 1 Ann. P. C. p. 612. The certified copy of the record of the internal revenue license to appellant as a retail malt liquor dealer, which corresponded, as testified to by one witness, with the said revenue license posted in appellant’s place of business, was properly admitted in evidence. 1 Branch’s Ann. P. C., p. 66; Gersteman v. State, 35 Tex. Cr. R. 318, 33 S. W. 357; Goble v. State, 42 Tex. Cr. R. 504, 60 S. W. 968; Novy v. State, 62 Tex. Cr. R. 492, 138 S. W. 139. In the Novy Case he was charged and convicted for keeping a disorderly house. In that case this court held:

“It is well established that such an offense as is charged in this case is a continuous one, and a conviction bars all further or other prosecutions up to the time of the conviction,-unless the indictment or information carves oiit the time of the commission of the offense and the evidence, as well as the pleading, is confined to such time so carved out. Huffman v. State, 23 Tex. App. 491 [5 S. AV. 1341; Fleming v. State, 28 Tex. App. 234 [12 S. W. 605].”

See Handley v. State, 16 Tex. App. 444; Hall v. State, 32 Tex. Cr. R. 475, 24 S. W. 407.

The court therefore did not err in permitting some of the witnesses to testify that they had seen posted in appellant’s said place of business said internal revenue license about a week before this case was tried and about the same time bottles of said liquor were bought from appellant or one of his clerks. In said Novy Case it was expressly held that purchases from the appellant’s clerks or other employes were admissible, citing quite a number of decisions to that effect.

Neither did the court err in permitting the state to introduce in evidence the labels on the bottles of said liquor which had been purchased from apipellant to the effect that it contained “12 ounces and less than 2 per cent, alcohol; has no superior; sparkles with life. Teddy beer, the acme of perfection. Made by an old German process from choice-est materials. Teddy beer, a fermented beverage”— and giving the name of the Consumers’ Brewing Company, New Orleans, as the distributors.

The court gave a correct charge under the law and correctly refused the special charges requested by appellant.

The judgment is affirmed. 
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