Full opinion text
HAWKINS, J. Conviction is for violating what is usually referred to as the “Sunday Law.” The particular offense for which appellants were prosecuted is defined in article 286, Pen. Code, eliminating the portions not applicable here, as follows: .“The proprietor of any place of public amusement, or the agent or employee of any such person, who shall * * * permit his place ⅜ ⅜ ⅜ of public amusement to he open for * * * public amusement on Sunday, shall he fined,” in the sums stipulated, if an admission fee is charged. There are six counts in the information. In the first, second, fourth, and sixth Brock-man and Nix are alleged to he offenders on different dates, and in the third and fifth Brockman and Padgitt are alleged to he the offenders on other dates. In each count the parties are alleged to be “proprietor, agent and employee of a place Cf public amusement" etc., which was kept open' on Sunday and for admission to which an admission fee was charged. The evidence fails to show that any of the parties were .the proprietors of the place of amusement, which was a picture show. So far as the information undertook to charge appellants as “agent or employee,” it is defective in not. naming the principal or proprietor; or, if such party was not known, to so allege. See section 819, Branch’s Ann. Tex. P. C. p. 463, and the authorities collated thereunder, and Gould v. State, 61 Tex. Cr. R. 195, 134 S. W. 695. The state refers us to Ex parte Lingenfelter, 64 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 19140, 765, for an indictment in the exact terms as found in this case. That was a ha-beas corpus case, and the sufficiency of the indictment was not before the court. It will be observed from the opinion that it was agreed that Lingenfelter was the “proprietor” of the show. Tne present information would be sufficient to sustain a conviction of the parties as “proprietors,” but the evidence took that issue out of the case. The same point here discussed was also decided in a companion case, No. 13358, Brockman & Nix v. State, 28 S.W.(2d) 820, this day decided. The judgment must be reversed, and the cause remanded.