Ex Parte Lingenfelter , 64 Tex. Crim. 30 ( 1911 )

The questions of fact, and the questions of law dependent upon the facts, are carefully and accurately stated in applicant's brief, and the authorities are cited in support of the propositions relied upon for the discharge from custody of applicant. The brief and argument concisely and ably present the legal questions involved, and in my judgment, the propositions relied upon are correct and sustained by the authorities and the law. I, therefore, adopt the brief of counsel as my dissenting opinion, which is as follows:

"The applicant, William Lingenfelter, is charged by complaint in the Corporation Court in the city of Waco, Texas, with being the proprietor of a place of public amusement commonly known as a `picture show,' the same being in the nature of a theater where motion pictures are displayed, and with having as such, unlawfully permitted said place of public amusement to be opened for public amusement on Sunday, April 16th, 1911, and with having permitted a performance consisting of a display of motion pictures for public amusement, to be given and exhibited in said place of public amusement and for which performance and exhibition an admission fee was charged."

This complaint was submitted to the court upon a written agreement as to the facts. The court considered said statement of facts and held that defendant, William Lingenfelter, was guilty of a violation of article 199 of the Penal Code, and assessed his punishment at a fine of $20, and ordered that he be committed to custody until said fine and costs were paid.

Applicant applied to the Hon. Richard I. Munroe, judge of the District Court of McLennan County, for a writ of habeas corpus, which was denied, and he thereupon presented his application to the presiding judge of this honorable court who granted the writ and made it returnable before the Court of Criminal Appeals on Wednesday, May 24th, 1911.

A certified copy of the original complaint, statement of facts and judgment of conviction are attached to the application in this case and made a part thereof, and agreed between the honorable assistant attorney-general and the applicant to be considered as record evidence of the matters therein contained, and as a statement of facts for the hearing of said writ before this honorable court.

Said statement of facts, in substance, shows that applicant was the proprietor of a moving picture show situated in Waco, Texas, and that on the 16th day of April, 1911, he kept said picture show open to the public and gave an exhibition of moving pictures therein, and charged an admission fee of five cents for each person who entered said place and saw said exhibition.

Said statement of facts further shows that said moving picture show was then and there conducted in an ordinary building, and that at the rear of the same was a screen or canvas upon which said pictures were exhibited by reflection from the moving picture machine. That the pictures upon the screen were produced by running a long film commonly known as a `reel,' through said moving picture machine. That said film, or reel, consisted of a great number of separate negatives, and the running of the same through the machine produced to the eye the appearance of the persons in said pictures moving to and fro as in case of ordinary moving picture shows.

Said statement of facts further shows that there was no stage in said room, and no vaudeville performance given, and no actors and no exhibition except the said pictures on said screen.

Said statement of facts further shows that said pictures so exhibited were representations of scenes in the life of Christ. Said statement of facts further shows that said place is run exclusively as a moving picture show and that there is no exhibition of vaudeville, or other entertainment in the ordinary everyday operation of the same, and that the sole entertainment furnished is the exhibition of such moving pictures.

Said statement of facts further shows that it was agreed between the State and the defendant that the case should be submitted to the court upon the same, without other evidence, and that the sole issue to be determined was whether or not the complaint in the case charged an offense against the law, or whether or not the facts therein agreed upon constituted a violation of art. 199 of the Penal Code of the State of Texas.

The sole question for determination is whether or not the exhibition of moving pictures in an ordinary moving picture show, without vaudeville, or other attractions, or exhibitions of any kind, is an offense under article 199 of the Penal Code, when given on Sunday and an admission fee charged therefor.

Appellant respectfully submits that such exhibition is not an offense under such article and supports his contention by propositions, authorities and argument as follows: Propositions. 1. No person shall be punished for any act or omission unless the same is made a penal offense and a penalty affixed thereto by the written law of this State.

2. Article 199 of the Penal Code, having provided that the term, "place of public amusement," as therein used, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged, no public amusement whatever, though exhibited on Sunday, and a fee charged for admission thereto, is prohibited by said article except those specifically named in said article, and such as are of the same kind and class as those named therein.

3. A moving picture show, pure and simple, without vaudeville or other attractions, is not a circus, theater or variety theater.

4. Such a moving picture show is not of the same kind or class of amusements as circuses, theaters, or variety theaters.

5. The exhibition of moving pictures on Sunday and the charging of an admission fee therefor, not being prohibited by said article 199, or any other article of the Penal Code of the State of Texas, the conviction of appellant in the Corporation Court was without authority and unlawful, and his confinement by virtue of said judgment was unlawful, and he is entitled to be discharged from such unlawful restraint and custody.

Authorities: On first proposition. Penal Code, arts. 1, 3, 4, 5, and 6. On second proposition. Ex Parte Roquemore,60 Tex. Crim. 282, 131 S.W. 1101; Ex Parte Muckenfuss,52 Tex. Crim. 467, 107 S.W. 1101; Crow v. State, 6 Tex. 334; Ex Parte Hull, 110 P. 256; State v. Prather, 100 P. 57; Ex Parte Neet, 57 S.W. Rep., 1025. On third proposition. State v. Cody, 120 S.W. Rep., 267; State v. Penny, 111 P. 727; Bloch v. City of Chicago, 87 N.E. Rep., 1011; 8th Words Phrases, 6937-8. On fourth proposition. 8th Words Phrases, 6937-8; People v. Lynch, 108 N.Y. Sup., 209; Keith Proctor v. Bingham, 108 N.Y. Sup., 205; People v. Hemleb, 111 N.Y. Sup., 690; William Fox Amusement Co. v. McClellon, 114 N.Y. Sup., 594; Edwards v. McClellon, 118 N.Y. Sup., 181. On fifth proposition. Ex Parte Roquemore, 60 Tex.Crim. Rep., 131 S.W. Rep., 1101; Crow v. State, 6 Tex. 334; Ex parte Neet, 57 S.W. Rep., 1025.

Article 199 of the Penal Code, under which the defendant was being prosecuted, reads as follows: "Any merchant, grocer or dealer in wares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the agent or employe of any such persons, 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.''

It is not contended by the State that a picture show is a disorderly house, low dive or place of like character. It is plain that a picture show without vaudeville is not a circus or a variety theater. The complaint charges that the picture show in question was in the nature of a theater and it is considered useless to discuss any other phase of the statute.

We are not considering the question as to whether the Legislature could enact a law prohibiting the opening of a moving picture show on Sunday, but only the question of whether it has already enacted such a law. In so far as the statute under which applicant is prosecuted, is penal in character, it is to be construed in accordance with the provisions of arts. 1, 3, 4, 5, and 6 of our Penal Code. These articles read as follows: "Article 1. The design of enacting this Code is to define in plain language, every offense against the laws of this State and affix to each offense its proper punishment. Article 3. In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense and a penalty is affixed thereto by the written law of this State. Article 4. The principles of the common law shall be the rule of construction, when not in conflict with the Penal Code or Code of Criminal Procedure, or with some other written statute of the State. Article 5. In the construction of this Code, each general provision shall be controlled by a special provision on the same subject, if there be a conflict. Article 6. Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it can not be understood, either from the language in which it is expressed or from some other written law of the State, such penal law shall be regarded as wholly inoperative."

These statutes make it plain that this, or any other prosecution, to be lawfully sustained, must be based upon a clear, explicit and unequivocal declaration of the written or statute law of the State, and that this and other penal statutes are to be strictly construed.

The statute declares that 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."

Under the common law rules of construction and also under the settled law of this State, this statute is to be construed as applying only to circuses, theaters, variety theaters and otherpublic amusements of the same kind or class.

This principle of construction is announced in substance by the Supreme Court of this State in the early case of Crow v. State,6 Tex. 334. It is clearly expressed and applied in Ex Parte Muckenfuss, 52 Tex.Crim. Rep., 107 S.W. 1131. It is again announced, explained and applied in an able and lucid opinion by Judge Ramsey in Ex Parte Roquemore, 60 Tex.Crim. Rep.,131 S.W. 1101. In that case the court uses the following language: "It will be noted that this article undertakes to name and designate the place of public amusement, and it is said that it shall be so construed as 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, or places of like character, with or without fees for admission. That baseball is not specifically named, of course, is clear. What are we to understand by the general term, `and such other amusements as are exhibited and for which an admission fee is charged?' Clearly, we think, amusements of like or similar character."

The court further proceeds in said opinion as follows: "The doctrine of ejusdem generis is applied in all cases where there is doubt as to the intention of the Legislature and as the rule for statutory construction is stated, to be that where general words follow particular words in a statute, the general words will be limited in their meaning, or restricted to things of like kind and nature with those specified. . . . It is within the power of the Legislature to make the playing of baseball on Sunday a misdemeanor, but if such be the purpose, apt words can readily be employed which will express that intention and leave no room for doubt."

It will be borne in mind that the Roquemore case involved the construction of this statute as applied to the exhibition of a game of baseball and the charging of admission thereto on Sunday. The language used, however, applies with equal force to the case here under consideration. It is equally clear that this statute, in terms, does not prohibit the exhibition of a moving picture show on Sunday, and it is equally clear that if the Legislature desires to prohibit such exhibitions on Sunday, apt words can be readily employed which will express that intention, and that until such intention is expressed by the Legislature in a clear and explicit statute, the exhibition of a moving picture show on Sunday is no offense, whether an admission fee be charged or not.

In the Roquemore case, the court further proceeds to elaborate the reasons and application of the rule as follows: "In the case of Ex Parte Muckenfuss, 52 Tex.Crim. Rep., 107 S.W. Rep., 1131, we had occasion to review and consider at length the rule of construction applicable to a statute such as this. We there said: "It is a familiar rule that where general words follow particular and specific words, the former must be confined to things of the same kind." It has been held also that this rule is especially applicable in the interpretation of statutes defining crimes and regulating their punishment. After quoting numerous authorities, the court continues: "The doctrine itself is thus well expressed in Lewis' Sutherland, Statutory Construction: `When there are general words following particular and specific words, the former must be confined to things of the same kind. This is known as the rule or doctrine of ejusdem generis. Some judicial statements of this doctrine are here given. When general words follow an enumeration of particular things, such words must be held to include only such matters or objects as are of the same kind as those specifically enumerated. The rule is that where words of a particular description in a statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things, or cases of like kind to those designated by the particular words. It is a principle of statutory construction everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear, if standing alone, but as related to the words of more definite and particular meaning with which they are associated. The rule is supported by numerous cases."

In support of the rules above announced, the court quotes more than a half column of authorities from various States.

The court further said in the Roquemore case: "Another good rule for construction is that when a particular class is spoken of and general words follow the class first mentioned, is to be taken as the most comprehensive and the general words treats as referring to matters ejusdem generis, with such class." (Citing Matters of Hermance et al., 71 N.Y. 481, and other authorities.)

We have quoted largely from the Roquemore case because it not only announces the general rule, but applies it without equivocation to the statute under consideration. For the purposes of this case the moving picture show exhibited by applicant must have been either a theater, or of the same kind and class as a theater in order to make him amenable to the punishment prescribed.

Was the moving picture show in question a theater? The following judicial definitions of a theater, with the authorities sustaining the same, are taken from 8th Words Phrases, page 6937.

A theater is a house for the exhibition of dramatic performances as tragedies, comedies, and farces; a playhouse comprehending the stage, the pit, the boxes, galleries and orchestra. Among the ancients, it signified an edifice in which spectacles or shows were exhibited for the amusement of spectators, as its derivation from the Greek verb, "to see," plainly shows. Rowland v. Kleber, 1 Pittsb. R., 68, 71; Bell v. Mahn, 15 A. 523; 121 Pa., 225; 1 L.R.A., 364, 6 Am. St. Rep., 786.

A theater is a house for the exhibition of dramatic performances, but the word "theater," in art. 1850 (P.L. 773), providing a punishment for any person or persons attempting to show, hold or exhibit any theater, circus or menagerie, etc., without a license, refers not to the place, but to the troupe or exhibition itself — the language being, "every other county within the bounds of which such theater may be shown, held or exhibited," that is, in every county in which the dramatic performance is exhibited, the license shall be paid. Commonwealth v. Keeler, 3 Pa. Dist. R., 158, 161.

An opera company need not be licensed under an act fixing licenses for theaters. Rowland v. Kleber, 1 Pittsb. R., 68, 71.

A musical performance is not a theatrical, nor a dramatic performance within the meaning of Rev. St. Ohio, section 7032a, prohibiting any theatrical or dramatic performance of any kind or description on Sunday. State v. Fennessy, 10 Ohio S. C.P. Dec., 608, 609.

It can be readily ascertained from the legal definition of this word, that the question of whether an amusement is a theater, is determined not from the name, but from the exhibition itself, and since a moving picture exhibition does not comprehend actors, pit, boxes nor gallery, nor a dramatic performance, it is quite clear that a moving picture show is an exhibition wholly unlike and dissimilar from a theater in any respect, is not of like kind, but as said by the Supreme Court of the State of Illinois, is a separate and distinct branch of the amusement business.

These authorities show conclusively that a moving picture show has none of the essential elements of a theater and they are also useful to show that lacking such essential elements it is not of the same kind or class of amusement as a theater.

The case of State v. Cody, 120 S.W. Rep., 267, is by the Court of Civil Appeals for the Third Supreme Judicial District, and the opinion of the court was delivered by the late lamented Chief Justice Fisher. In that case the court considered the identity, likeness and similarity between a circus and a wild west show. The opinion is not only interesting, but also exceptionally able and well worth perusal as a proper and decorous expression of judicial humor.

Bearing on this question of identity and similarity between a theater and a moving picture show, we respectfully call the court's attention to the following:

The Supreme Court of Montana, in the case of the State v. T.C. Penny, 111 P. 727, in an opinion decided on the 15th day of November, 1910, construed the following statute by that State. Article 8369, of the Revised Code of the State of Montana reads as follows: "Every person who, on Sunday, or the first day of the week, keeps open or maintains or aids in opening or maintaining any theater, playhouse, dance house, race track, gambling house, concert saloon, or variety hall, is guilty of a misdemeanor." The appellant, Penny, was convicted and fined by the lower court for keeping his picture show open on Sunday, and the higher court reversed and dismissed the case, and in the opinion, held that a moving picture show was not a theater. The court says: `The sole question of determination is whether the statement of facts is sufficient to warrant the conclusion that the defendant was guilty of keeping open and maintaining a theater, contrary to the provisions of section 8369 of the Montana Code. The only other question is, does the operation of a moving picture show on Sunday violate the statute prohibiting the opening or maintaining of a theater on Sunday? The mere fact that the show was sometimes called a theater was of no consequence in view of the further fact that we have before us a particular description of the class of entertainment furnished. If the show was a theatrical performance, the statute would be violated; if it were maintained in a place other than a theater building, as for instance, in the open air; if the giving of a moving picture show was in terms prohibited by the statute, the courts would be bound by the words employed, and there would be no occasion to construe the legislative language. As this form of entertainment is not mentioned on account of the fact, probably, that shows of the kind were unknown and unthought of at the time the law was enacted, it is the duty of the court in seeking the legislative meaning to first ascertain the reason for the enactment of the law. The law prohibited the giving of a theatrical performance as such. Therefore, that feature of it may not be questioned. Doubtless, the legislative assembly considered that such a show ought not to be permitted on Sunday. But, we must seek the reason for such a conclusion in order to ascertain whether a show, not specifially mentioned, is also prohibited. These and similar laws are passed in the exercise of the police powers of the State. They are presumed to be reasonable as enacted.

We take the following from 31 Cyc., 902: "Police power, strictly speaking, a term which has relation to a power of organization of a system of regulations tending to the health, order, convenience and comfort of the inhabitants, and to the prevention and punishment of injuries and offense to the public."

It is undoubtedly by virtue of the police power that theater performances on Sunday are prohibited. They are not mala in se, such performances can not affect the health, convenience or comfort of the inhabitants, unless they are so boisterous in their nature as to be a disturbing element. Therefore, it must be that they are prohibited for the purpose of preserving the peace, order and good morals of the community. The chapter in which section 8369, Revised Code, is found, is entitled "Offenses against Good Morals." (The chapter in which article 199 of the Penal Code of Texas is found is entitled, "Offenses Affecting Religion.")

It may, perhaps, be admitted that the Legislature has power to prohibit the exhibition of a moving picture show or pictures of a particular description on Sunday, or demoralizing scenes on any other day, but as it has not in terms done so, such a show is not prohibited unless it falls within that class of entertainment which tends to disturb the peace, quiet, good order, or morals of a community. The statement of facts discloses that the pictures shown at the time and place mentioned in the complaint were of a clean and moral character and had been approved by a so-called Board of Censorship, which had the power to prohibit and did prohibit the exhibition of any unclean or immoral pictures; the moving pictures were accompanied by piano music, and as a part of the performance, a vocal solo of a sentimental nature, accompanied by the music on the piano, was sung. We can not perceive how this sort of an entertainment could possibly affect either the good morals or the good order of the city of Missoula, or its inhabitants. It appears to us to have been an innocent amusement having a tendency to instruct, rather than to demoralize or disturb; and as the Legislature has not seen fit to prohibit it, the courts ought not do so." Ex Parte Hull, 110 Pacific, 256.

In the case of Moore v. Owen, 109 N.Y.S., 585, the court held that a moving picture exhibition was a show within the meaning of a statute prohibiting shows on the first day of the week. See Economo-pouslos v. Bingham, 109 N.Y.S., 728, but our statute does not prohibit the opening or maintaining of a show, it specifically mentions a theater, which means a theatrical performance. While the word "show" may, and undoubtedly does, include a theatrical performance, the word "theater" is not sufficiently comprehensive to include all shows.

In the case of Edwards v. McClellan, 118 N.Y.S., 181, the Supreme Court of New York says: "Moving picture shows given indoors, accompanied by music, electric light, advertising and posters, are not public shows within Penal Code, section 265, prohibiting all shooting, hunting, fishing, playing, horse racing, gaming or other public exercises or shows on Sunday."

In the case of William Fox Amusement Company v. McClellan, 114 N.Y.S., 594, the Supreme Court of the State of New York held: "Moving picture shows in a hall for which admission is charged, are within the terms of Penal Code, section 265, forbidding the exhibition on Sunday of certain specified public shows, not including moving picture shows," and in the same case the court held that a moving picture show is not within Penal Code, section 277, and section 1481 of the charter laws of 1897, prohibiting specified indoor exhibitions on Sunday, such shows not being one of those specified in the statute.

In the case of People v. Hemleb, 111 N.Y. 609, the Supreme Court of the State of New York held that under Penal Code, section 265, prohibiting all shooting, hunting, fishing, playing, horse racing, gambling, or "other public exercises or shows" on Sunday, first enacted by the laws of 1788, prohibiting shooting, fishing, sporting, playing, horse racing, hunting, frequenting tippling houses on Sunday, and carried into the revision of 1830, with the addition of the word "gaming," and subsequently modified by adding "or other public sports, exercises or shows," does not, when considered in connection with section 277, prohibiting theatrical plays, etc., on Sunday, prohibit one from giving on Sunday, an indoor exhibition consisting of throwing on a canvas pictures, and of piano playing at intervals.

In the case of Weisblatt v. Bingham, 109 N.Y. 545, the Supreme Court of New York held: "A license is not required for a free moving picture show in an ice cream, saloon and candy store to draw trade under Greater New York Charter Laws of 1897, page 519, requiring a license for the exhibition to the public in any building, garden, or grounds, concert room or other place or room in the city of New York, of any tragedy, comedy, opera, play, ballet, farce, minstrelsy or dancing, or `any other entertainment of the stage,' or any equestrian circus or dramatic performance or any performance of jugglers or rope dancing or acrobats, such show not being within the meaning and purview of the Act and not within the words `any other entertainment of the stage.'"

In the case of Keith Proctor v. Bingham, 108 N.Y.S., page 205, the Supreme Court of the State of New York held:

"Penal Code, 265, prohibited all shooting, hunting, fishing, playing, horse racing, gaming, or `other public sports, exercises or shows,' and all noise disturbing the peace of the day on Sunday. Section 277 provides that the performance of any tragedy, comedy, opera, ballet, negro minstrelsy, negro, or other dancing, racing, boxing, sparring contest, trial of strength, or any part or parts therein, or any circus, equestrian or dramatic performance or exercise, or any performance or exercise of jugglers, acrobats, club performances or rope dances on Sunday, shall constitute a misdemeanor." Held that section 265 relates only to public outdoor exhibitions and that the word shows, as there used, did not include a combination lecture and moving picture show accompanied by musical selections in a theater on Sunday.

In the case of People v. Flynn, 108 N.Y.S., 208, the Supreme Court of the State of New York held an exhibition of a stereopticon of pictures, operated by an automatic slot machine device, together with certain other machines, which on the insertion of money in the slot, communicated certain musical selections to the operator, audible to him alone, did not constitute a violation of Penal Code, section 265, prohibiting shows on the first day of the week.

In the case of People v. Lynch, 108 N. S., 209, the New York Court says: "An exhibition of stereopticon pictures cast on a canvas, on Sunday, and a lecture consisting of the names and descriptions of the pictures, etc., did not constitute a violation of Penal Code, section 265, prohibiting all shooting, hunting, fishing, playing, horse racing, gaming, or other public exercises or shows on Sunday, and all noise disturbing the peace of the day."

In the case of Bloch v. City of Chicago, 87 N.E. 1011, opinion by the Supreme Court of Illinois, construing an ordinance and its effect on moving picture shows and exhibitions, held:

"Where an ordinance is passed in pursuance of an express power to pass an ordinance of that character, it can not be set aside by the courts, because they deem it unreasonable, and hence as Chicago City Charter empowering the city to prohibit the exhibition of obscene and immoral pictures, has no reference to theaters, their business not being the exhibition of pictures, an ordinance passed in pursuance of the clause regulating moving picture shows, was not invalid as unreasonable because it did not cover theaters. The court, in its opinion, says, referring to theaters:

"Their business is not the exhibition of pictures; it can not, therefore, be said that the exercise of the power conferred by clause 45 is unreasonable, because it does not include the theater. To say that an ordinance is special and applies only to a certain business or to persons engaged in a certain line of business, does not condemn it. The ordinance, however, is not special and contains no discrimination against persons of thesame class, or engaged in the same business. It applies alike to all persons engaged in the moving picture business, which the bill itself shows to be a separate and well established branch ofthe amusement business. There is no ground for regulations concerning that business which is different from the business of exhibiting pictures by stereopticon, or other similar methods."

While the case of Ex Parte Hull, 110 P. 256, involved the operation of a scenic railway on Sunday, it is so pertinent on the question of construction and similarity that we quote therefrom at length, as follows:

"Section 6825 of the Revised Code, provides that "it shall be unlawful for any person or persons in this State to keep open on Sunday, any theater, play house, dance house, race track, merry-go-round, circus, or show, concert saloon, billiard or pool room, bowling alley, variety hall, or any such place of public amusement." Held, "That in order to bring a public amusement, not specifically enumerated by the statute, under the general language, `any such place of public amusement,' the likeness or similarity must exist in something other than the mere fact that it is a public amusement, and must, in a general way, correspond to the amusements specified. An amusement that is not per se unlawful or criminal, and is not in itself immoral or dangerous or detrimental to the public health, will not be included within the provisions of the statute prohibiting certain specified public amusements and other like and similar amusements onSunday, unless the same is forbidden by the statute either indirect terms or by clear implication."

The court says: "It is difficult to tell the exact theory on which the lawmakers draughted this section of our statute. The amusements enumerated and prohibited are not similar or kindred amusements. There is apparently nothing common to all of them except that they are all public amusements. They are not all immoral amusements, nor are they all noisy and boisterous amusements. The race track may be said to be immoral in that it is a place of betting and gambling and so it may be said that the concert saloon and the variety hall are classes of amusements at least suggestive of immorality. On the other hand, the merry-go-round is not an immoral amusement." And again, the court says: "It is patent that the Legislature did not intend to absolutely forbid and prohibit all public amusements on Sunday. If they had so intended, they would have, undoubtedly, said so in so many words. On the contrary, they immediately follow the specific amusements enumerated with the words `or any such place of public amusement.' The word `such' has a very definite meaning. It is defined by the lexicographers as `of the kind; of the same or like kind; identical with or similar to something specified or implied; being the same as what has been mentionedor indicated; being the same in quantity, being the quality specified, etc. Now, it is evident that the Legislature intended to prohibit `any other public amusement not enumerated, whichcould be distinctly classed as like or similar to thosespecified,' but since all are alike in that they are publicamusements, the similarity must exist in something else otherthan the mere fact of amusement."

In the case above quoted, the Supreme Court of the State of Idaho, under the statute above indicated, held that a scenic railway operated on Sunday and for which an admission fee was charged, did not constitute a violation of the statute.

It will be observed that our statute says: "Any such other amusements as are exhibited and for which an admission fee is charged," and the Idaho statute says, "or any such place of public amusement." While the words are grouped differently, their construction is identical and the construction to be placed on our language is to be determined by applying the word "such," as applied in the Idaho statute to the particular things prohibited by the statute. In other words, the amusements prohibited on Sunday by our statute, are circuses, theaters, variety theaters, and the same or like kind of amusements as circuses, theaters, variety theaters, or identical with or similar to circuses, theaters or variety theaters.

Now, it is quite clear that a moving picture show does not come within the definition of a circus or variety theater, and the authorities above quoted are unanimous in holding that a moving picture show is not a theater, nor is it classed as a part of a theater, nor is it similar to a theater, nor identical with the same, nor of like kind, but on the other hand, it is a distinct and separate amusement brought into being by recent invention and unknown at the time article 199 of the Penal Code was enacted.

We, therefore, believe that by applying the doctrine of ejusdem generis to the statute, that the exhibition of moving picture shows on Sunday, for which an admission fee is charged, is not a violation of article 199 of the Penal Code.

It will be observed that in the case of Ex Parte Hull, supra, the court applied the doctrine of ejusdem generis and held that a scenic railway was not a violation of the statute, because the general language in the statute did not include any amusement, but included only such amusements as were of like kind to those specifically enumerated.

We note that the Hull case applied the same rule of construction as was done in the case of Ex Parte Roquemore, by our own courts, hereinbefore referred to and quoted.

Now, it will be observed from the complaint and statement of facts presented to the court, that applicant is charged with being the proprietor of a place of public amusement, to wit: a moving picture show, so that under the rule of construction adopted by our own court in the case of Ex Parte Roquemore, and others cited, the relator is not charged with the violation of any law known to our Code. If a moving picture show is not a theater, nor of like kind nor similar character, then clearly it follows under the authorities of all the States and our own State, by the application of the doctrine of ejusdem generis, that a moving picture show, or exhibition, is not prohibited by the terms of article 199 of our Penal Code. In addition to the doctrine of ejusdem generis, but strictly in harmony therewith, we will consider the word "such" in the statute under consideration. It declares that the term "place of public amusement" should be construed to mean, circuses, theaters, and such other amusements as are exhibited and for which an admission fee is charged.

Now, let us eliminate for the moment the doctrine of ejusdem generis and seek the definition and construction of the word "such" in this sentence, and ascertain to what this word "such" refers or relates. The entire meaning of this sentence, so far as the general clause is concerned, if we eliminate the doctrine of ejusdem generis, must depend on what the word "such" relates to. Now, we have already stated the opinion of Supreme Court of Idaho in the case of Ex Parte Hull, wherein the word "such" was used in a general clause prohibiting public amusements, and in the opinion in said case, the word "such" was legally defined. Now, let us see if we can find additional legal definitions of the word "such." Such: Of this or that kind; of the like, sort or kind; resembling, similar, like; preceding as before the object of reference; the same as what has been mentioned; referring to something that has been specified; representing the object in an indefinite sense as particularized in one way or another, or one and another. (Twentieth Century Encyclopedia.) "Such" is defined by Webster as having the particular quality or character specified; certain; representing the object as already particularized in terms which are mentioned. (State v. Estep, 71 Pacific, 857.) "Such," as used in statutes, is a descriptive and relative word, and refers to the last antecedent unless the meaning of the sentence would thereby be impaired. (Summermann v. Knowles, 33 N.J. Law, 202.) The words, "said" and "such," when used by way of reference to any person or thing, shall apply to the person or thing last mentioned. (Pub. St. N.H., 191, p. 63.) The word "such" is often used to mean as "previously mentioned or specified, not other or different." (Evans v. State,50 N.E. 820; 150 Ind. 651; State v. Second Judicial District Court,68 P. 570-4, 26 Mont. 396.) We believe that the doctrine of ejusdem generis applies and as hereinbefore stated, by application of this doctrine, a moving picture show is not prohibited under the statute.

We further say that the word "such," as used in the statute according to the legal definitions above mentioned, affirmatively precludes and excludes the idea that all public amusements for which an admission fee is charged are violations of the law, and had such been the intention of the Legislature, apt words would have been used by which all public amusements could have been prohibited.

Before we dismiss the subject of construction, we quote from the opinion of the court in Ex Parte Neet, 57 S.W. Rep., 1025, as follows:

"The doctrine of ejusdem generis is as rock-ribbed in the law of this State as any principle ever announced. As applied to penal statutes especially, it is only a humane doctrine and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offenses by the law. It observes the respective rights of the different co-ordinate branches of the government by requiring the Legislature to enact the laws and the judiciary to enforce, but not create the laws, not even by construction."

The statement of facts in this case shows that there was no stage in the room where this exhibition was held; that there was no vaudeville performance and no actors, no exhibition, except the said pictures on the screen, and that such pictures were the sole entertainment furnished.

The court necessarily has a well defined idea of the elements and characteristics of an ordinary theatrical exhibition. The statement of facts does not attempt to describe it, but we are constrained to quote from Judge Fisher in the Cody case, as a sensible rule for the application of the individual knowledge of the judge in passing upon questions submitted to him. He says: "We can not pretend to judicial knowledge of this subject, but in considering a word which has common meaning, and the application of which is a matter of common understanding, we are not required to conceal our knowledge upon that subject, because of the fact that we did not testify in the case."

Applying this common knowledge, we are constrained to remark that if the performance shown by this statement of facts is of `like kind' as a theater or theatrical performance, it bears only a slight and remote resemblance to that old and ancient institution. No one ever heard a moving picture called a theater, and if they did, their senses certainly deceived them if they thought, when viewing a moving picture exhibition, that they were witnessing a theatrical performance. However, should any one have been unfortunately misled or deluded in the matter, they could very properly feel aggrieved, for if, in witnessing a moving picture exhibition, it were held out as a theater, or theatrical performance, it was a poor one indeed in omitting all the features that should have been exhibited and that are peculiar to that institution.

The statement of facts in this case shows no stage, no pit, no scenery, no boxes, no gallery, no orchestra, no actors and no performers.

S.E. Stratton,

J.N. Gallagher,

Attorneys for applicants."

In addition to what has been said in the brief, adopted as my dissenting opinion, I wish to add that this is the first instance within my knowledge in this State, where it has been undertaken to hold the moving picture show a theatrical performance. By no stretch of construction, or even of imagination, can this be correct. The Thirty-second Legislature, at its regular session, evidently so recognized, and in support of this, offered a bill amending article 199 of the Penal Code; what is known as H.B., No. 497, was introduced in the House, amending the Penal Code so as to include moving picture shows within its inhibition. As introduced, said Bill 497, reads as follows: "Article 199. Any person, firm or corporation in this State, or any agent, lessee, servant, or employe of any theater, moving picture show, or any other place of public amusement of whatsoever name, where an admission fee is charged, who shall open, run, operate or exhibit, or be concerned in opening, running or operating on Sunday, any theater, moving picture show, or any other place of public amusement, aforesaid, shall be fined in any sum not less than twenty nor more than fifty dollars." To further emphasize the meaning of this bill as introduced in the House, it provided further that the inadequacy of the laws of this State to prohibit the opening, running, operating, and exhibiting moving picture shows, etc., created an imperative public necessity, etc., and the bill was introduced, amending article 199, Penal Code, aforesaid, providing for such emergency clause. The bill was referred to a proper committee and returned to the House with the unanimous adverse report "that it do not pass." In this manner the bill was finally killed and the Legislature, of course, failed to pass it. Here we have the Legislature itself recognizing the fact that moving picture shows were not included within the meaning of article 199, and an attempt on the part of some members of the House to include them; the House, receiving the adverse committee report, declined to pass the bill, and it went to the waste basket, or, at least, it did not pass and failed to become a law. If moving picture shows were already included in article 199, Penal Code, it was a work of supererogation to seek to re-enact a bill with an amendment, including moving picture shows — a thing in the opinion of the majority, already provided for and included in said article. Under the statute and the case of Ex Parte Roquemore, 60 Tex.Crim. Rep., 131 S.W. 1101, and Ex Parte Muckenfuss, 52 Tex.Crim. Rep., 107 S.W. 1131, and the other cases cited by appellant in his brief, moving picture shows are excluded from the provisions of article 199, Penal Code, as places of public amusement, inhibited from being kept open on Sunday. The rule of ejusdem generis excludes moving picture shows as being places of amusement set forth in article 199, Penal Code. The authorities are so clear and satisfactory, I deem it unnecessary to discuss the matter further.

I, therefore, adopt the brief of counsel for appellant with the addition that I have made, and for these reasons, respectfully enter my dissent.

ON REHEARING. December 20, 1911.