Appellant was convicted of keeping open a moving picture show on Sunday, and given a fine of $20.
From the record we gather that appellant was the proprietor, owner, and operator of the Queen Moving Picture Show, in Austin, the same being a regularly licensed moving picture show.
On the day mentioned in the complaint, appellant kept said place open, charged an admission fee, and seems to have had a large crowd
of people present. The reel shown on said day was a series of pictures entitled "Under Four Flags," and it appeared to be a part of the publicity work of the committee headed by Mr. George Creel. Appellant claimed that his show was not of the kind or class forbidden by Article 302 of our Penal Code; and asserted that it was a question of fact that should be submitted to the jury, and to this end asked the following special charge:
"You are instructed gentlemen of the jury that not every amusement which is exhibited and to which an admission fee is charged on Sunday is a violation of the law but only such as are forbidden by law, and an amusement which is exhibited and to which an admission fee is charged on Sunday and which is not a circus, a theatre nor a variety theatre, or is not of the same kind, character or nature or genus as a circus, theatre, or a variety theatre is not against the law. You are therefore instructed that before you can find the defendant guilty in this case, you must not only find that he kept open a place of amusement on Sunday and charged an admission fee thereto but you must further find from the evidence that such amusement was either a circus, a theatre, or a variety theatre or was of the same kind, character or nature as a circus, theatre or variety theatre, and unless you do so find, you will acquit the defendant."
There is nothing in the record to indicate that the show of appellant was in any wise different from the other regularly licensed and operated moving picture shows, nor to combat the proposition that its continual business was to amuse, instruct and entertain the public, for a consideration by the exhibition of all kinds and characters of moving pictures nor do we think that the fact that on this particular day, in a probable effort to evade the operation of the Sunday Law, said picture show was operated only to show scenes and incidents connected with the war, would take it out of the inhibition of Article 302 of our Penal Code.
Impersonation of the acts of another, or others, however realistic or true to life, is but drama, which is defined to be something intended to exhibit episodes of human life, to depict a series of grave or humorous action of more than ordinary interest, tending toward some striking result. It is commonly designed to be spoken and represented by actors on the stage. The principal divisions are tragedy and comedy. That the original of the thing attempted to be reproduced, was a real occurrence, — whether a tragedy, as of a war between nations, a combat between individuals, — or a comedy in actual life, — would not change the fact that its reproduction would be a play, or drama. If General Pershing, with a company of ex-service men who had braved the perils of the Meuse and Argonne Forest, should present inpropria persona, and by word and deed, a reproduction of the thrilling occurrences of those days, in a tent, house, or enclosure, for a consideration, this would be but acting, — but a drama.
It is well known, as a part of the current history of the times, that Col. Wm. F. Cody, brave soldier and scout, for years carried from end to end of this country, a group of genuine cowboys, outlaw horses, real Indians, actual battle-scarred stage coaches, and presented realistic reproductions of occurrences of the earlier days of our country's history, and yet, in the opinion of our lawmakers, his exhibition was so like, or similar to a circus, that they linked the two together in Subdivision 14, of Article 7355 of our Civil Statutes, and exact the same license fee "from every circus or wild-west show." In subdivision 13 of the same Article, all theatres and dramatic representations, are classed together for purposes of taxation. We do not care to go into an extended analysis or discussion of the actual similarity between theatres, circuses, dramas, picture shows, etc., nor of any extended application of the rule of ejusdem generis to these various things which we have mentioned as being of like kind and class to theatres and circuses, for this has already been ably and exhaustively done by this Court in other cases similar to the one before us.
Appellant sought by his special charge, to have it left to the jury as to whether or not the instant case, upon the practically agreed facts, was of like kind or class with a theatre or circus. We do not think this a jury question, nor has it been so considered by any of the courts with whose opinions we are familiar. In the recent case of Capital Theatre Co. v. Commonwealth, 199 S.W. Rep., 1076, it was sought to have the labor in operating a moving picture show on Sunday, held a necessity, under a statute exempting works of charity and works of necessity on Sunday. In its opinion, the appellate court of Kentucky, uses the following significant language: "The authorities also agree that the question whether the work complained of as having been done on the Sabbath, is a work of necessity or charity, — the facts being established, or as in this case, agreed, — is one of law for the court." In the Roquemore case, 60 Tex.Crim. Rep.; 131 S.W. Rep., 1101, cited and relied on by appellant, we held that the question as to whether the exhibition of a baseball game on Sunday, for which an admission fee was charged, was of the same kind or class as a theatre, — was one for the court, and this Court decided that it was not of such kind, class, or species. In the Lingenfelter case, 64 Tex.Crim. Rep., 142 S.W. Rep., 555, this Court passed affirmatively upon the question as to whether a moving picture show, exhibiting on Sunday for an admission fee, pictures of the life of Christ, — was of the same kind and class as a theatre, and we held the same to be such and a violation of Article 302 of our Penal Code. For similar holdings, see Zucarro v. State, 82 Tex.Crim. Rep., 197 S.W. Rep., 982; Ex parte Zucarro, 72 Tex.Crim. Rep., 162 S.W. Rep., 844; Lempke v. State, 76 Tex.Crim. Rep., 171 S.W. Rep., 217; McLeod v. State, 77 Tex.Crim. Rep.; 180 S.W. Rep., 117; Spooner v. State, 79 Tex.Crim. Rep., 182 S.W. Rep., 1121.
In Ex parte Muckenfuss, 52 Tex.Crim. Rep.; 107 S.W. Rep., 1131, Judge RAMSEY, for this Court, ordered the relator discharged, upon the judicial determination by us that the offense for which he was held was not, under the facts, of the same genus, kind, and class as those offenses, to prevent which an injunction would lie. In Humphrey v. State, 34 Tex. Crim. 434, we substantially held that it was not proper to submit to the jury a special instruction to acquit, unless the tables and dominoes used were kept specially for gaming purposes. We uphold the judicial determination of the courts that it is not proper to submit to the jury the question of whether whiskey is intoxicating. When murder is charged to have been committed with a gun, and shown to have been done with a pistol, we do not submit to the jury the question of whether ejusdem generis would apply. Nor when the allegation is of theft of a horse, do we require the submission of the question to the jury as to whether a mare, a gelding, or a colt is of the same kind, class, and species as a horse. Similar illustrations might be multiplied adinfinitum. In Graham v.
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Appellant was convicted of keeping open a moving picture show on Sunday, and given a fine of $20.
From the record we gather that appellant was the proprietor, owner, and operator of the Queen Moving Picture Show, in Austin, the same being a regularly licensed moving picture show.
On the day mentioned in the complaint, appellant kept said place open, charged an admission fee, and seems to have had a large crowd
of people present. The reel shown on said day was a series of pictures entitled "Under Four Flags," and it appeared to be a part of the publicity work of the committee headed by Mr. George Creel. Appellant claimed that his show was not of the kind or class forbidden by Article 302 of our Penal Code; and asserted that it was a question of fact that should be submitted to the jury, and to this end asked the following special charge:
"You are instructed gentlemen of the jury that not every amusement which is exhibited and to which an admission fee is charged on Sunday is a violation of the law but only such as are forbidden by law, and an amusement which is exhibited and to which an admission fee is charged on Sunday and which is not a circus, a theatre nor a variety theatre, or is not of the same kind, character or nature or genus as a circus, theatre, or a variety theatre is not against the law. You are therefore instructed that before you can find the defendant guilty in this case, you must not only find that he kept open a place of amusement on Sunday and charged an admission fee thereto but you must further find from the evidence that such amusement was either a circus, a theatre, or a variety theatre or was of the same kind, character or nature as a circus, theatre or variety theatre, and unless you do so find, you will acquit the defendant."
There is nothing in the record to indicate that the show of appellant was in any wise different from the other regularly licensed and operated moving picture shows, nor to combat the proposition that its continual business was to amuse, instruct and entertain the public, for a consideration by the exhibition of all kinds and characters of moving pictures nor do we think that the fact that on this particular day, in a probable effort to evade the operation of the Sunday Law, said picture show was operated only to show scenes and incidents connected with the war, would take it out of the inhibition of Article 302 of our Penal Code.
Impersonation of the acts of another, or others, however realistic or true to life, is but drama, which is defined to be something intended to exhibit episodes of human life, to depict a series of grave or humorous action of more than ordinary interest, tending toward some striking result. It is commonly designed to be spoken and represented by actors on the stage. The principal divisions are tragedy and comedy. That the original of the thing attempted to be reproduced, was a real occurrence, — whether a tragedy, as of a war between nations, a combat between individuals, — or a comedy in actual life, — would not change the fact that its reproduction would be a play, or drama. If General Pershing, with a company of ex-service men who had braved the perils of the Meuse and Argonne Forest, should present inpropria persona, and by word and deed, a reproduction of the thrilling occurrences of those days, in a tent, house, or enclosure, for a consideration, this would be but acting, — but a drama.
It is well known, as a part of the current history of the times, that Col. Wm. F. Cody, brave soldier and scout, for years carried from end to end of this country, a group of genuine cowboys, outlaw horses, real Indians, actual battle-scarred stage coaches, and presented realistic reproductions of occurrences of the earlier days of our country's history, and yet, in the opinion of our lawmakers, his exhibition was so like, or similar to a circus, that they linked the two together in Subdivision 14, of Article 7355 of our Civil Statutes, and exact the same license fee "from every circus or wild-west show." In subdivision 13 of the same Article, all theatres and dramatic representations, are classed together for purposes of taxation. We do not care to go into an extended analysis or discussion of the actual similarity between theatres, circuses, dramas, picture shows, etc., nor of any extended application of the rule of ejusdem generis to these various things which we have mentioned as being of like kind and class to theatres and circuses, for this has already been ably and exhaustively done by this Court in other cases similar to the one before us.
Appellant sought by his special charge, to have it left to the jury as to whether or not the instant case, upon the practically agreed facts, was of like kind or class with a theatre or circus. We do not think this a jury question, nor has it been so considered by any of the courts with whose opinions we are familiar. In the recent case of Capital Theatre Co. v. Commonwealth, 199 S.W. Rep., 1076, it was sought to have the labor in operating a moving picture show on Sunday, held a necessity, under a statute exempting works of charity and works of necessity on Sunday. In its opinion, the appellate court of Kentucky, uses the following significant language: "The authorities also agree that the question whether the work complained of as having been done on the Sabbath, is a work of necessity or charity, — the facts being established, or as in this case, agreed, — is one of law for the court." In the Roquemore case, 60 Tex.Crim. Rep.; 131 S.W. Rep., 1101, cited and relied on by appellant, we held that the question as to whether the exhibition of a baseball game on Sunday, for which an admission fee was charged, was of the same kind or class as a theatre, — was one for the court, and this Court decided that it was not of such kind, class, or species. In the Lingenfelter case, 64 Tex.Crim. Rep., 142 S.W. Rep., 555, this Court passed affirmatively upon the question as to whether a moving picture show, exhibiting on Sunday for an admission fee, pictures of the life of Christ, — was of the same kind and class as a theatre, and we held the same to be such and a violation of Article 302 of our Penal Code. For similar holdings, see Zucarro v. State, 82 Tex.Crim. Rep., 197 S.W. Rep., 982; Ex parte Zucarro, 72 Tex.Crim. Rep., 162 S.W. Rep., 844; Lempke v. State, 76 Tex.Crim. Rep., 171 S.W. Rep., 217; McLeod v. State, 77 Tex.Crim. Rep.; 180 S.W. Rep., 117; Spooner v. State, 79 Tex.Crim. Rep., 182 S.W. Rep., 1121.
In Ex parte Muckenfuss, 52 Tex.Crim. Rep.; 107 S.W. Rep., 1131, Judge RAMSEY, for this Court, ordered the relator discharged, upon the judicial determination by us that the offense for which he was held was not, under the facts, of the same genus, kind, and class as those offenses, to prevent which an injunction would lie. In Humphrey v. State, 34 Tex. Crim. 434, we substantially held that it was not proper to submit to the jury a special instruction to acquit, unless the tables and dominoes used were kept specially for gaming purposes. We uphold the judicial determination of the courts that it is not proper to submit to the jury the question of whether whiskey is intoxicating. When murder is charged to have been committed with a gun, and shown to have been done with a pistol, we do not submit to the jury the question of whether ejusdem generis would apply. Nor when the allegation is of theft of a horse, do we require the submission of the question to the jury as to whether a mare, a gelding, or a colt is of the same kind, class, and species as a horse. Similar illustrations might be multiplied adinfinitum. In Graham v. State, 183 S.W. Rep., 983, the Supreme Court of Tennessee upheld the action of a trial court in judicially determining that a moving picture show was such kind and class of business as to make it violative of a statute forbidding the doing on Sunday of the common avocations of life. In State v. Morris, 76 A. 479, an appellate court in Delaware judicially determined that a moving picture show was of such kind and class as to make it a violation of a statute which forbade exhibiting circuses without licenses. In Clinton v. Wilson,257 Ill. 580, the appellate court judicially determined that a picture show was not ejusdem generis with a billiard room, baseball ground, ball or pin alley; and held that a moving picture show was not within the inhibition of a law forbidding such named places, or other such places of amusement, to run on Sunday.
In the instant case, there was practically no contest over the facts. Appellant testified that he was the owner, operator, and proprietor of the Queen Moving Picture Show, which was a regularly licensed picture show, which he says was run on said Sunday, just as it was run on other days. Speaking in one place of his license, he said that he did not have it; that it was framed, on the wall of the theatre. Appellant further testified that on the Sunday in question, the large crowd present to view the particular show in question, paid twenty cents each admission fee. Our conclusion is that the question of ejusdem generis is one for the court and not for the jury; and that an attempt at reproduction by moving pictures or live actors, of the acts and deeds of other persons and things, for which an admission fee is charged, is of the class, kind and species forbidden by Article 302 of our Penal Code, and that the trial court did not err in refusing to give the special charge requested.
In addition to the above, we call attention to the fact that the special charge under discussion contains no definition of a theatre, etc., and if it had been proper to submit to the jury the question whether a picture
show was of like kind and character as a theatre, etc., such charge would be insufficient unless same in some way told the jury, or submitted to them, the nature and character of that which was used as a standard of comparison. The word "theatre" has definition in the works of the lexicographers, but we know of none in the laws of this State, except in Article 1480 of our Penal Code, which will be further discussed. In both Webster's International Dictionary, and the Century Dictionary, a theatre is defined as an edifice, or a room in which dramatic spectacles or performances may be exhibited to an assembly; the locality where a series of events take place, or may be observed; the drama; theatrical representations; the stage. We note that in the Zucarro case, supra, reference is made to Article 1480 of Vernon's Penal Code. This article was enacted in 1907, and while not having for its purpose Sabbath regulation, it is held in the Zucarro case not to be in conflict with Art. 302, P.C., under which this prosecution is had, and may well be looked to as indicative of the legislative intent and purpose in the use of the terms and expressions about which so much has been said in this connection. It is declared in the caption of said article 1480 (See page 21, Acts of the Regular Session, 1907) that part of the purpose of said Act is to declare theatres, play houses, opera houses, and other show buildings, by whatever name known, to be public places of amusement. It is enacted in Section 1 of said statute, that all buildings constructed, fitted, and equipped for theatrical purposes, which are commonly called theatres, opera houses, play houses, or designated by any other name, when used for public performances, the production and exhibition of plays, dramas, operas, and other shows of whatever nature, to which an admission fee is charged, are public houses of amusement. We take it that this is the last word in comprehensiveness. If by construction, fitting and equipment, a building be a theatre; or if same is commonly called a theatre, opera house, play house, or other designation, and same is used to give a play, a drama, an opera, or any other show to which an admission fee is charged, it is declared to be a public house of amusement. This is a later enactment than Article 302, and we think its unquestioned comprehension of picture shows in its definition of places of public amusement, is properly considered in construing said Article 302. While it is true that the legislative construction of a statute, or its definition of a similar term in any other statute, cannot control the judgment of the courts, yet it is entitled to weight and consideration in cases where there is doubt. Article 1480 is a declaratory statement of a definition by the Legislature, which plainly makes a house of public amusement include a picture show. Our conclusions on this subject hitherto and in other cases, have been largely based on deduction and reason, which are fortified and aided by reference to said last named article.
Having carefully examined this record, and the questions raised, and finding no error in the judgment of the trial court, the same will be affirmed.
Affirmed.
DAVIDSON, PRESIDING JUDGE, (dissenting).