Oliver v. State

144 S.W. 604, 65 Tex. Crim. 150, 1911 Tex. Crim. App. LEXIS 574

• Court: Court of Criminal Appeals of Texas
• Decided: October 11, 1911
• Docket: No. 882.
• Status: Published

Opinions

PRENDERGAST, Judge.

By complaint and information filed December 10, 1909, it was charged that the appellant on November 14, 1909, in Dallas County, Texas, was the agent and employee of the Interstate Amusement Company, a corporation, which was the proprietor of a place of public amusement, to wit, a theater, situated in the city of Dallas, and as such agent and employee, he, on said last named date, the same being Sunday, did unlawfully open and permit to be opened said theater and public amusement and on said day did permit a theatrical performance to be given and exhibited in said theater for public amusement and for admission to which a fee was charged. He was fried, found guilty and a fine of $20 was assessed against him.

The appellant introduced no evidence. The State proved that on Sunday, November 14, 1909, the appellant'was selling tickets to this show, or theater, in Dallas, Texas, fixing the particular house in which it occurred. Two witnesses testified that they bought tickets from him and that many other people did likewise and went into and saw the show. There was a good, big crowd therein. There was a woman and two or three men on the stage. It was called and known as the Majestic Theater. Appellant told the witnesses that he was the ticket seller. Another witness described the show or play as a scene in which a very beautiful lady was cast upon an island, and the natives were more animals than human in appearance, and they almost worshipped her because of her beauty, and made her queen of the island. Later a missionary came over to do missionary work and fell in love with her and wanted to marry her. There was singing and some music also on the stage. It was a place of public amusement, and all this occurred on Sunday, November 14, 1909. The appellant sold tickets to this, show on this occasion to the two witnesses who testified and to many others. Each purchaser of tickets after purchasing same, went into the theater and saw the play.

The State also introduced in evidence a certificate by the Secretary of State of the State of Texas, dated June 23, 1905, certifying that a certified copy of articles of incorporation of the Interstate Amusement Company, incorporated under the laws of Missouri, were filed in the department on June 22, 1905, in accordance with the requirements of the laws of Texas, and paid the full fees therefor and is entitled to, and granted permission to do business in the State of Texas, for the purpose of the promotion of' fine arts for the term ending May 1, 1915. The certificate certifying to the copy by the Secretary of State was dated' November 22, 1909.

In addition, the State introduced) in evidence a properly certified copy from the records of the county clerk of Dallas County, Texas, a lease from the Dallas Amusement Company to the Interstate Amusement Company, whereby the said Dallas Amusement Company leased to the said Interstate Amusement Company the building in Dallas, known as the Majestic Theater, which was the same that was shown by the testimony to be wherein the show, or theater, was held on said date, November 14, 1909, for .the term beginning November 1, 1905, for five years. This lease specified the amount of rent that the lessee was to pay to the lessor and the times of the respective payments during the full term of the lease. It had many other provisions between the parties about repairs, lights, water, rent, etc., etc.,_ and gave the lessee specific authority to assign or transfer the lease, and also provided that the property leased was to be used for any and all theatrical purposes. It provided for a forfeiture of the lease in .case the lessee failed to pay the rent at the specified times for thirty days after maturity and that if the State should pass any law prohibiting the carrying on of the business for which said property was leased, that would render the lease null and void. There were other contingencies which provided for a termination of the lease, unnecessary to here state.

The record is rather large. It shows that appellant requested eleven special charges and contains seventeen bills of exceptions. Eleven of the bills of exceptions are to the refusal of the court to give the respective eleven special charges. Another one of the bills is to the overruling of the motion for new trial which contained fifteen separate and distinct grounds. It is unnecessary to notice this bill specially as the matters proper to be discussed are contained in the others.

Bill No. 2 states that while the witness W. H. Cullum was testifying for the State in chief and while he was attempting to describe what he denominated a missionary scene, he used the expression: “And it was quite a nice little play.” The appellant at the time objected to this answer and asked that it be excluded from the jury on the ground that it was not responsive to the question propounded and was the expression of the opinion of the witness. In allowing the bill the court qualified it by stating that the trial court deemed said expression as merely a shorthand rendition of the facts.

It is the uniform holding of this court that inferences will not be indulged to supply omissions in bills of exceptions. Parties asserting the availability of supposed errors must make their bill of exceptions so full and certain in statement that in and of itself it will disclose all that is necessary to manifest the supposed error. Davis v. State, 14 Texas Crim. App., 645; Eldridge v. State, 12 Texas Crim. Rep., 208; McGlasson v. State, 38 Texas Crim. Rep., 351. A bill of exceptions to be considered must sufficiently set out the proceedings and attendant circumstances to enable the court therefrom to know certainly that an error has been committed. Thompson v. State, 29 Texas Crim. App., 208; Livar v. State, 26 Texas Crim. App., 115; Ballinger v. State, 11 Texas Crim. App., 323, and McGlasson, supra. The error complained of must be made to appear by the allegations of the bill itself. And when too indefinite to point out distinctly an error it will not bring such matter properly before the Appellate Court for review. Quintana v. State, 29 Texas Crim. App., 401; Walker v. State, 19 Texas Crim. App., 176; Hooper v. State, 29 Texas Crim. App., 614; Hennessy v. State, 23 Texas Crim. App., 340; Rahm v. State, 30 Texas Crim. Rep., 310; Wilkerson v. State, 31 Texas Crim. Rep., 86; Walker v. State, 33 Texas Crim. Rep., 359; Yungman v. State, 35 Texas Crim. Rep., 80; Gonzales v. State, 32 Texas Crim. Rep., 611; Attaway v. State, 31 Texas Crim. Rep., 475. These are but some of the earlier decisions on the subject. They have been uniformly followed by this court in all recent decisions down to the present time. This bill, thus tested, is clearly insufficient to require this court to consider it. Even if we could, we can not see how it would be possible for the appellant to be injured by the expression of the witness as quoted in the bill and how it is possible for any reversible error to have been committed by the court in not excluding the answer.

The next bill complains that while this same witness was on the stand the State asked him: “Q. State to the jury whether or not that is a place of public amusement.” The appellant objected to this question on the ground “that the answer would be a conclusion . of the witness and the question called for a conclusion and opinion of the witness and that one of the material allegations in the complaint was that the Majestic Theater was a place of public amusement.” The court overruled the objection and the witness answered: “So I understand it.” The court in allowing the bill qualified it as follows: “The ivitness Laws prior to this trial (witness) had testified that said performance occurred in the Majestic Theater, corner of Commerce and Stone Streets; that there were a lot of people in the theater; that they bought tickets and went in the door; that it was a big crowd; that the stage curtain was up and that a woman and two or three men were on the stage; that there was music in the theater; that he asked the defendant if he (defendant) was the ticket seller, and he (defendant) informed him (witness) that he (defendant) was the ticket seller; that said occurrence took place on November 14; that the witness Cullom’s testimony was substantially the same, and both witnesses were testifying about November 14 as being time their testimony referred to.”

This bill is clearly insufficient as the previous one noticed was and for the same reasons. Tested by the authorities cited it does not in and of itself disclose what ivas necessary of the proceedings in the case to show any error to this court. It does not set out the proceedings and attendant circumstances sufficiently to enable this court to know certainly that an error has been committed. Even if we could consider it, it occurs to us that whether or not the theater mentioned was a place of public amusement was a question of fact and that a witness could be asked 'that question correctly and could, if he knew, legally answer the question. It would not be such" a conclusion, nor call for such a conclusion as would make the testimony unlawful in view of the character of fact that was under investigation.

The next bill, No. 4, shows that the appellant objected to the copy of the permit admitted in evidence, which is described in the preliminary statement herein on many grounds. It is unnecessary to state them. This same question was before this court in the case of Gould v. State, 61 Texas Crim. Rep., 195, 134 S. W. Rep., 695, wherein this court held that the said certificate which evidently is the same that was introduced in this case was properly admitted in that case. It is unnecessary to here further discuss this matter.

The next bill shows this: “That after the State had introduced its evidence and rested, the defendant had sworn arid placed on the stand as a witness in his behalf O. F. Gould and offered to prove by him that he was manager of the said theater, was present at the same on the day and date alleged in -the complaint herein; that he alone opened the theater on that date and permitted same to be opened for the purpose of public amusement at said time and that he alone had the power to open and permit said theater to be opened for the purpose of public amusement on said date and that the defendant Oliver was not, on said date, either the agent or employee of the Interstate Amusement Company in Dallas or elsewhere in Texas, or the United States.” The State objected to this witness testifjdng, because the witness himself was also charged in the same court with the same offense that the appellant herein is charged with and that he had been convicted for such offense. The court sustained the objection, and in allowing the bill qualified it as follows: “Said 0. F. Gould had been convicted in the County Court at Law on the charge of violating the law in reference to this same Majestic Theater on the same identical date, viz.: November 14. Said Gould had not paid his fine in said cause; but had appealed same to the Honorable Court of Criminal Appeals and the appeal in said Gould case was pending and undetermined at the time of the trial of the defendant Oliver.” Article 91, Penal Code, is as follows: “Persons charged as principals, accomplices or accessories, whether in the same indictment or by different indictments, can not be introduced as witnesses for one. another, but they may claim a severance; and if any one or more be acquitted they may testify in behalf of the others.” The witness clearly was incompetent to testify. Rutter v. State, 4 Texas Crim. App., 57. The conviction need not be for the same offense. Muckenfuss v. State, 55 Texas Crim. Rep., 216.

The next bill shows -that the appellant objected to the introduction of evidence of the lease above recited from the Dallas Amusement Company to the Interstate Amusement Company. The grounds of the objection, briefly stated, are that the lease, being dated November 1, 1905, was too remote to be of any probative value and because the lease had many conditions of forfeiture which could have cancelled and annulled it and taken it out of existence long before the date of the charge herein and there was no evidence that said lease was still in force and effect; and because it showed that the Interstate Amusement Company had the right therein to sublease the leased premises and to assign and transfer the lease and no testimony is shown that none of this has not been done.

This bill is also clearly insufficient for the same reason as the others herein above called attention to. Even if not insufficient, the several objections made would go to the weight of the evidence and not to its admissibility. Such testimony could and doubtless was discussed before the jury. There was no error of the court in admitting the lease.

The sixteenth ‘and seventeenth bills of exceptions complain of the refusal of the court—the sixteenth—refusing to give a requested peremptory charge to acquit the defendant; and, the seventeenth, that as the State had failed to prove that the defendant was the agent or employee of the amusement company, a peremptory charge to acquit. The court did not err in refusing to give any of these charges.

All of the other bills of exceptions complain of the refusal of the court to give his several special requested charges, numbered from • 1 to 9, inclusive. It is unnecessary to state severally these special charges. There is much repetition in them. They request charges, among other things, of the definition of a theater and of the proprietor of the Interstate Amusement Company, as to what is a musical performance, the definition of a drama; of agent, employee, and permit; as to what is meant by control, etc., of the theater; the definition of a theatrical performance; and the seventh as to the defendant acting as servant or clerk of Gould.

Not a single one of these bills of exception are complete in and of itself and does not set out the proceedings and attendant eircum stances, and tbe evidence in the case to show whether or not they were proper. However, we have considered each and everyone of them. The court in allowing each one of the bills qualified it substantially by stating—the seventh, as not raised by the testimony, and the others that so far as they were proper to give had been embraced and covered fully by the court’s main charge; and that the second, defining a musical performance was not called for by the testimony. As stated above, these several charges in many instances were mere repetitions and were more or less a mere change of the verbiage which was substantially given and contained in the court’s charge. The court’s charge on the several matters is as follows: “A theater is a play house; a building for the representation of theatrical performances; a theatrical performance is an exhibition given for the instruction or amusement of the audience and may include tragedies, comedies, farces and vaudeville performances. An agent is one who acts for another by authority from him. An employee is a person who is employed; one who works for wages or a salary— to permit means; to grant permission to give leave; to grant express license or liberty to.”

We have carefully examined the whole charge of the court, and in our opinion it clearly and aptly charged all that was necessary and proper to be charged in the case so far as the special charges requested are concerned. There is no complaint by the appellant of the charge of the court itself, other than the refusal to give his said several special charges requested.

The appellant’s attorneys have filed an able brief herein wherein they vigorously contend that the court has committed the many errors claimed by their bills of exceptions. In addition, since the case has been submitted, they have filed a supplemental brief wherein they, with ability, contend in effect “that the appellant can not be convicted in this cause as the 'agent and employee’ of the Interstate Amusement Company because the statute itself under which the prosecution is had contemplates in effect that only the 'proprietor’ of the theater could be prosecuted and convicted thereunder, because he alone can open or permit the place to be opened or closed, unless the 'agent or employee’ is affirmatively shown to occupy such a relation to the public amusement that he could permit it to be opened, and such control as that he could close it. That he must have the authority and exclusive control of the theater. That a mere clerk or servant, though an employee, if he were not in control of the theater, could not be guilty, because he could not permit it to be opened, nor close it.” As we understand their brief, this position was not contended for by them in their first brief, and apparently not in the lower court.

The article of the Penal Code under which this prosecution was had, 199, is as follows: “Any merchant, grocer, or dealer in wares or merchandise,- or trader in any business whatsoever, or the proprie tor of any place of public amusement, or the agent or employee of any such person, who shall sell, barter or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term place of public amusement shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives and places of like character with or without fees for admission.”

The language of the Legislature in this enactment may not happily express what we believe was clearly intended thereby. It is our opinion that this enactment as applicable to the character of offense charged in this case in order to express the legislative intent which we think is clear, would make the article, leaving out what is applicable to the conducting of other businesses, read as follows: “The proprietor of any place of public. amusement who shall permit his place of public amusement to be open for the purpose of public amusement on Sunday, or the agent or employee of any such person, shall be fined not less than twenty nor more than fifty dollars. The term place of public amusement shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged.” It will thus be seen that we merely transpose the language used by the Legislature in order to make clear what we believe was certainly intended by the Legislature. In transposing we have taken nothing out and put nothing in the enactment of the Legislature on this subject. Simply have transposed in order to make more readily seen, the clear intent of the Legislature. Murry v. State, 21 Texas Crim. App., 620; Ripley v. State, 27 Texas Crim. App., 55; Code Criminal Procedure, article 25; Penal Code, article 9. This certainly, as we conceive it, is the construction that this court has uniformly placed upon this statute. In Burnett v. State, 42 Texas Crim. Rep., 600, this court, in discussing whether or not a mere porter hired for only one day, Sunday, would be guilty of making a sale as the agent of the proprietor, when all that he had done was work that one day as a porter in the saloon, and carried the pint of liquor from the keeper to the purchaser at the door, states: “We do not think the statute means that he must be employed as a salesman in order to make him guilty of the offense, but means, if he is in the employ of the merchant or dealer in any respect about the particular business, the statute comprehends him.; that is, suppose he was the bookkeeper of the establishment, and should make a sale on Sunday, the statute would cover such a case.

“Again, appellant complains that the charge in question authorizes the jury to convict, not on a sale or on an agency, but if he assisted in the sale. We think the statute covers this phase of the case. If he was in the employ, and knowingly aided in -the sale, he would be a principal. The testimony on the part of the State 'shows that he went to the door, got the money, handed it to the barkeeper, who gave him the bottle of whisky and the change, which he carried and delivered to the purchaser, Fitts, at the door. He admits himself that he carried the pint of whisky to the door and gave it to said Fitts, but denies that he received the money for the whisky. The receipt of the money, it seems to us, would make no difference. If, being in the employ of Kearby on that day (and it does not matter as to the compensation he was to receive), he did any act in aid of the sale of the whisky, though the sale may have been made by the barkeeper, he would be amenable under the law.” Penal Code, article 74; Collins v. State, 34 Texas Crim. Rep., 95; Pigford v. State, 74 S. W. Rep., 323.

In misdemeanor cases all parties are principals; there are no accomplices. Bolton v. State, 43 S. W. Rep., 984; Rape v. State, 34 Texas Crim. Rep., 615; Houston v. State, 13 Texas Crim. App., 595; Schwartz v. State, 38 Texas Crim. Rep., 26; Keith v. State, 38 Texas Crim. Rep., 678.

It is clear to us that the Legislature intended not only to make it an offense for the proprietor to permit his place of public amusement to be open for that purpose on Sunday when an admission fee is charged, but that any agent or employee of the proprietor, who should do any act towards keeping the theater open and run on Sunday, should also be guilty, whether the language of the enactment is transposed, as we have suggested • above, or not. Appellant’s counsel cite us to the opinion of this court in the case of Mitchell v. State, 34 Texas Crim. Rep., 311, to sustain their position. That case was against a mere servant or employee under the Disorderly House Act as it existed at that time. The Act at that time did not make it an offense for the servant, agent, or employee to in any way assist in the running of the disorderly house, but restricted the offense to the “owner, lessee, or tenant only,” and this court in that case held that as Mitchell, the appellant, was neither the owner, lessee or tenant, but merely a servant or employee, he was not embraced within- the language of that legislative enactment. We think that that case but accentuates the construction of the Act in question in this case, because it does expressly include “the agent or employee.”

- There being no reversible error, the judgment will in all things be affirmed.

Affirmed.

Davidson, Presiding Judge, absent.