The opinion
ON MOTION FOR REHEARING.
GRAVES, Judge.
Appellant contends in his motion that the facts herein are insufficient to show that he was engaged in the business of running an open saloon.
The testimony shows that appellant was present in the Shelton cafe in Brownwood when an agent of the Liquor Control Board entered therein and asked for a sandwich, and appellant told one McCombs to fix him a sandwich. McCombs and the agent went back into the kitchen of the cafe. The agent had previously asked appellant for some whisky. Appellant said “I’ll sell it but you can’t take the whisky out of the cafe.’ Arthur Shelton said that McCombs would wait on me. * * * After I
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(the agent) went with Emmett McCombs back into the kitchen of the cafe I bought two drinks of whisky from Emmett McCombs and paid him 15 cents each for the two drinks of whisky. * * * I bought the whisky from Emmett McCombs and paid him for it, in the Shelton cafe, while Arthur Shelton was in the cafe.”
It seems to us that whisky was sold and offered for sale by the drink in this cafe, and that the appellant was concerned therein. That this fulfilled the definition of the phrase “open saloon” as contained in the statute. In the original opinion we held that the statute denouncing the operation of an open saloon is operative throughout the area of the whole State, and in our judgment the facts show that appellant has violated the statute prohibiting such operation.
It is objected that only two sales of liquor by the drink does not constitute the operation of an open saloon. The law denouncing such operation does not require that any sale be made. It will be observed that the statute defining an open saloon says in part:
“* * * or any liquor * * * is sold or
offered for sale
for beverage purposes by the drink * * * or any place where any such liquors are sold or
offered for sale
for human consumption on the premises where sold.”
The motion is overruled.