Full opinion text
HARPER, Judge. Relator was prosecuted under the following complaint in the Corporation Court of the city of Waco, to wit: “Personally appeared before the undersigned authority, J. P. Moore, who on oath, says that W. M. Lingenfelter, in the city of Waco, in said State of Texas, on or about the 16th day of April, A. D., 1911, who was then and there the "proprietor, agent and emploj'e, of a place of public amusement, to wit: what is commonly known as a picture show, the same being in the nature of a theater where motion pictures are displayed, did then and there unlawfully and willfully open and permit said place of public amusement to be open for public amusement on Sunday, said 16th day of April, 1911, then and there being Sunday, and did then and there on said Sunday, permit a performance to be given and exhibited in said place of public amusement, to wit, a display of said motion pictures, for public amusement, and for admission to which a fee was charged, against the peace and dignity of the State.” When tried, relator was adjudged guilty, and his punishment assessed at a fine of $20. This prosecution was brought under article 199, of the Penal Code, which, as applicable to this offense, reads as follows: “Article 199. Any proprietor of any place of public amusement, or the agent or employe of any such person, who shall permit his place of public amusement to be open for the purpose of 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.” When relator was convicted, he applied to Hon. Richard I. Munroe, judge of the 54th Judicial District, for a writ of habeas corpus, which was refused, when an application was made to Hon. W. L. Davidson, presiding judge of this court, who granted the writ. The contention of relator is that the complaint charges no offense under the PenaLLaws of this State, and if this be true, of course, he would be entitled to be discharged. Under the agreement of counsel for relator and the city attorney of the city of Waco, the case was submitted on the following agreed statement of facts: “It is agreed between the State and defendant, for the purpose of this case only, that the defendant, William Lingenfelter, is the proprietor and manager of a moving picture show1 located near the corner of 6th and Austin Streets in the city of Waco, McLennan County, Texas, and known as ‘The Ideal.’ “It is further agreed that the said William Lingenfelter, on Sunday, the 16th day of April, 1911, 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 moving picture show was then and there conducted in an ordinary building about twenty-five feet wide and one hundred feet deep. At the rear of said building, a screen of canvass was placed, upon which said pictures were exhibited by reflection from the moving-picture machine hereinafter referred to. Hear the front of the building, was an elevated stand upon which was situated an instrument commonly known as a moving picture machine and the pictures upon the screen were produced by running a long film, commonly known as a reel, through said moving picture machine, which caused the exhibition of pictures upon said screen. 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 per- . sons in said pictures moving to and fro as in ease of ordinary moving picture shows. “There was no stage in said room and there was no vaudeville performances and no actors and no exhibition except the said pictures on said screen. “The said pictures so exhibited were representations of scenes in the life of Christ, one of said scenes representing the Last Supper, another the Garden of Gethsemane, and others representing other scenes in the life of Christ. “During said exhibition, a man stood near said screen and explained the several pictures to the audience as they were exhibited. “Said place is run exclusively as a moving picture show and there is no exhibition of vaudeville or other entertainment in the ordinary every-day operation of the same, the sole entertainment furnished being the exhibition of such moving pictures. “It is agreed that the picture show complained of in this case, and run by defendant, is an ordinary ‘moving picture show’ without vaudeville or other attractions, and the court may take judicial cognizance of the nature and character of such shows. “It is further agreed that this case shall be submitted to the court on this agreed statement of facts without other evidence, and that the sole issue to be determined is whether or not the complaint in this case charges an offense against the law or whether or not the above facts constitute a violation of article 199, of the Penal Code of the State of Texas.” Under the agreement, it will be noticed that the only question for this court to decide is “whether or not the complaint charges an offense against the law,” that is, is a moving picture show embraced within the provision of article 199 of the Penal Code above quoted ? Counsel for relator earnestly insist that it is not embraced within the provisions of that article, and have filed an able brief in support of their contention, and in the beginning, lay down the following propositions and cite the following authorities: “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, theatres, variety theatres 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, theatre 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 applicant 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 Texas Crim. Rep., 282, 131 S. W. Rep., 1101; Ex Parte Muckenfuss, 52 Texas Crim. Rep., 467, 107 S. W. Rep., 1131; Crow v. State, 6 Texas, 334; Ex Parte Hull, 110 Pac. 256; State v. Prather, 100 Pac. 57; Ex Parte Neet, 41 Texas Crim. Rep., 621, 57 S. W. Rep., 1025. On third proposition: State v. Cody, 120 S. W. Rep., 267; State v. Penny, 111 Pac., 727; Bloch v. City of Chicago, 87 N. E., 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 Texas Crim. Rep., 282, 131 S. W. Rep., 1101; Crow v. State, 6 Texas, 334; Ex Parte Neet, 41 Texas Crim. Rep., 621, 57 S. W. Rep., 1025.” These propositions bring the matter properly before us for- our decision, and we will discuss them in their order. 1. That no person can be punished for any act or omission unless the same is made a penal offense by the laws of this State, need not be discussed. Article 3, of the Penal Code, provides: “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 affixed thereto by the written law of this State.” This is the settled law of this State. 2. Under this proposition is brought up the construction to be placed on the language of article 199, and especially the words “theaters and such other amusementsWe are cited to Ex Parte Roquemore, decided by this court in 60 Texas Crim. Rep., 242, 131 S. W. Rep., 1101, and Ex Parte Muckenfuss, 52 Texas Crim. Rep., 467, 107 S. W. Rep., 1131. In the Roquemore case it is held: “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, and 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 a like or similar character. This seems to have been the construction given to a similar statute by many courts. It has been said that ‘baseball is not prohibited by a statute which ■ provides for the punishment of any one convicted of horse racing, cock fighting, or playing at cards or game of any kind on Sunday.’ State v. Prather, 79 Kan., 513, 100 Pac., 57, 21 L. R. A., 23, 131 Am. St. Rep., 339. To the same effect see Neet, Ex Parte, 157 Mo., 527, 57 S. W., 1025, 80 Am. St. Rep., 638; St. Louis Agricultural Ass’n. v. Delano, 108 Mo., 217, 18 S. W., 1101. . . . “In the case of Ex Parte Muckenfuss, 52 Texas Crim. Rep., 467, 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 to the interpretation of statutes defining crimes and regulating their punishment. See McDade v. People, 29 Mich., 50, citing American Transportation Co. v. Moore, 5 Mich., 368; Hawkins v. Great W. R. R. Co., 17 Mich., 57, 97 Am. Dec., 179; Matter of Ticknor’s Estate, 13 Mich., 44; Phillips v. Poland, L. R., 1 C. P., 204; Hall v. State, 20 Ohio, 7; Daggett v. State, 4 Conn., 60, 10 Am. Dec., 100; Chegaray v. Mayor, etc., 13 N. Y., 220; 1 Bish. Crim. Law, par. 149; Dwarris, 621. 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 he 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 onty 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. (Citing many authorities.) . . . “This precise rule has received indorsement in our own courts. Murray v. State, 21 Texas Crim. App., 620, 2 S. W. Rep., 757, 57 Am. Rep., 623. In that' case, Judge White says: ‘The leading and controlling rule in the construction of statutes, in fact the primary and fundamental one, is to interpret them according to their true meaning and intent. To ascertain this intent, it is the duty of the court to find, by other established rules, what was the fair, natural, and probable intent of the Legislature. For this purpose, the language employed in the act is first to be resorted to. If the words employed arc free from ambiguity and doubt, and express plainly, clearly and distinctly the intent, according to the most natural import of the language, there is no occasion to look elsewhere. People v. Schoonmaker, 63 Barb. (N. Y.), 47, citing McCluskey v. Cromwell, 11 N. Y., 601.’ Another good rule of 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 treated as referring to matters ejusdem generis with such class. Matter of Hermance et al., 71 N. Y., 481, citing Arch. of Canterbury’s Case, 2 Coke, 46a: Lyndon v. Stanbridge, 2 K. & N., 51; Reg. v. Edmundson, 2 E. & E., 83; Gibbs v. Lamon, 30 L. J., ch. 170; Broom’s Legal Max., 625.” We are also referred to the case of Ex Parte Hull, 110 Pac., 256, which is an Idaho case. In that case, relator was prosecuted under a statute • which provides: “It shall be unlawful for any person or persons to keep open on Sunday any theater, playhouse, 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 ámusement.” In that case the facts show that relator operated a “scenic railway,” and it was held not within the statute, merely holding, as was held by this court in the Roquemore case, it must be of similar character or kind as those mentioned in the statute. It says, in speaking of the words, “or any such place of public amusement—• the word 'such’ has a very definite and distinct meaning. It is defined by the lexicographers as: of that kind; of the same or like kind; •identical with or similar to something specified or implied; being the same as what was mentioned or indicated; being the same in quality; having the quality specified,” etc., and then holds that .a “scenic railway” is not of the character or kind, nor similar to those things mentioned in the statute, and of course, not within its provisions. The case of State v. Prather, 100 Pac., 57, is a Kansas case, and simply holds that baseball is not prohibited by a statute which reads: “Every person who shall be convicted of horse racing, cockfighting, or playing at cards, or games of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor. The court held that the words, “game of any "kind,” following the words, “playing at cards,” meant games of the same character or kind, such as games of chance or of kindred nature, whether played with dominoes or similar things, and did not include athletic exercises, such as baseball, football, etc. In Ex Parte Neet, 57 S. W. Rep., 1025, a Missouri case, it was held, in construing a statute reading as follows: “Every person who shall be convicted of horse racing, cock fighting, or playing at cards, or games of any kind, on the first day of the week, commonly called Sunday, shall be guilty of a misdemeanor, and fined not exceeding fifty dollars,” that baseball playing was not prohibited, saying: _ _ _ _ “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. Baseball does not belong to the same class, kind, species, or genus as horse racing, cock fighting, or card playing.” Thus it is seen that all the cases cited under this proposition, but reiterate the doctrine announced by this court in the Roquemore and Muckenfuss cases, that is, in construing a statute, when general words follow specific words, the doctrine ejusdem generis applies, which term means, according to all the law writers, of similar character or species, and as applicable to this statute, would make it read: circuses, theaters, variety theaters, or amusements of similar character and kind, or of the same species, and if a moving picture show is included in that ■ definition, it would be prohibited, otherwise it would not. Ex Parte Leland, 1 Nott & McC., 460; Spalding v. People, 172 Ill., 40; Bills v. Putnam, 64 N. H., 554; Benton v. Benton, 56 Am. Rep., 512; State v. Broderick, 7 Mo. App., 19; Williams v. Williams, 16 Tenn., 20; State v. Williams, 2 Strob., 474; Com. v. Rice, 9 Metc. (Mass.), 253; State v. Schuchmann, 133 Mo., 111; Bucher v. Com., 103 Pa., 528; People v. White, 64 N. Y. App., 390; Powell v. Kempton, 2 Q. B. (England), 242; Severn v. Reg., 2 Can. Sup. Ct., 70; Bouvier’s Law Dic., 1 vol., p. 638. As to whether a moving picture show is of the same character or species as a theater, will be discussed by us under the fifth proposition of relator, as we are now: discussing the authorities cited in relator’s brief. We will discuss the authorities cited under the third and fourth propositions together, as they are, in substance, the same. We are referred to People v. Flynn, 108 N. Y. Sup., 208; 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; Fox Amusement Co. v. McClellan, 114 N. Y. Sup., 594; Edwards v. McClellan, 118 N. Y. Sup., 181; Weisblatt v. Bingham, 109 N. Y. Sup., 545, and in the brief, copious extracts are taken from the various opinions of that court in those cases. However, to thoroughly understand the extracts quoted, one must understand the question under discussion. By reference to those opinions, it will be seen they were discussing section 265 of the Code of that State, which reads: “Public sports and shows: All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises, pastimes or shows upon the first day of the week, and all noise disturbing the peace of the day on Sunday are prohibited.” In construing this article, it is held not to apply to any character of indoor performances, but only to outdoor entertainments. They hold that theatrical performances, moving picture shows, or any character of entertainment or exhibition given in a house, is not within this statute, but it applies to entertainments given out of doors. We have read each of these cases carefully, and their application to this case we fail to understand, except it again emphasizes the doctrine of ejusdem generis, in holding the statute referring to shooting, hunting, fishing, horse racing, etc., applies to only out of door exercises and exhibitions. However, these decisions were not rendered by a court of final resort in that State, and all divisions of that court do not so hold. In Moore v. Owen, 109 N. Y. Sup., 585, it is held that this statute does apply to shows whether in doors or out of doors, and in all the opinions of that court it is held that a moving picture exhibition comes within the meaning of the word “show,” and if the statute related to indoor entertainments, it would be prohibited under the statute. Other branches of that court have held contrary to those cited by relator in addition to the case of Moore, supra. For a list of them we refer to 114 F. Y. Sup., 598. The court of final resort in that State has not passed on the question of whether this statute applies to indoor as well as outdoor performances, but all the cases cited by relator, and the other cases do hold that if the statute includes “indoor performances” as well as outdoor exhibitions, then moving picture shows are within the statute. While these decisions are by what is termed the Supreme Court, yet in Few York, what is termed the “Supreme Court,” sits in divisions, and is not a court of final jurisdiction as is our Supreme Court. Appeal lies from their decisions to a court of final jurisdiction. But as said before, we fail to see the application to our statute, as to whether moving picture exhibitions are within its terms, because that statute names certain specific things, and is not followed by general words as is our statute, and all hold that moving picture exhibitions are included in the term “show.” We are also referred to the case of State v. Penny, 111 Pac., 727, a Montana case, wherein the statute which prohibits any theater from being opened on Sunday is being construed, and the court holds: “In the case of Moore v. Owen, 58 Misc. Rep., 332, 109 N. Y. Sup., 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 Economopoulos v. Bingham (Sup.), 109 N. Y. Sup., 728. But our statute does not prohibit the opening or maintaining of a ‘show.’ It specifically mentions a ‘theater,’ which, as' we have held, 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.’ ” This case further holds that a moving picture show is not a theater, but in that statute the word “theater” is not followed by the words “and such other amusements.” Fo one contends that a moving picture show is a theater, but a different question is presented when one comes to construe the other words in our statute, and which are not included in the Montana statute, and on the construction to be given these words, “and such other amusements,” will determine this case. Relator also cites us to the case of Bloch v. City of Chicago, 87 F. E., 1011, an Illinois case, in which was being discussed an ordinance of the city of Chicago, entitled: “An ordinance prohibiting the exhibition of obscene and immoral pictures and regulating the exhibition of pictures of the classes and kinds commonly known in mutoscopes, kinetoscopes, cinematographs and penny arcades.” The suit was brought to test the constitutionality of the ordinance because, as was alléged, it discriminated against the exhibition of moving pictures. The court holds: “The purpose of the ordinance is to secure decency and morality in the moving picture business, and that purpose falls within the police power. .Tt is designed as a precautionary measure to prevent exhibitions criminal in their nature and forbidden by the laws. Even the possession of an indecent picture is a crime under section 223 of' the Criminal Code (Hurd’s Bev. St., 1908, c. 38), and the offender may be confined in the county jail not more than six months or be fined not less than $100 nor more than $1000 for each offense. The ordinance applies to five and ten cent theaters such as the complainants operate, and which, on account of the low price of admission, are frequented and patronized by a large number of children, as well as by those of limited means who do not attend the productions of plays and dramas given in the regular theatres.” Thus it is seen that that court terms moving picture exhibitions “five and ten cent theaters,” and it was held that the ordinance not applying to regular theatrical performances, but only to such as exhibited pictures, did not render it discriminatory, and the ordinance was upheld. This case, read as a whole, supports no contention of relator. The only other case to which we are referred that would seem to have any application whatever, is the case of State v. Cody, 120 S. W. Rep., 267, which was a judgment rendered by the Court of Civil Appeals, for the Austin Judicial District. In that case the State sought to collect from Cody the circus tax, when Cody claimed the exhibition given by him was taxable under subdivisions 24, 25, art. 5049. The court, discussing the evidence at length, holds that the exhibition was not a circus, but was taxable under the other provisions of the statute, and does not pass on the question herein to be decided, whether or not it was an exhibition of a similar species, and is in point on no issue in this case, for there it was only discussed, what is a “circus” and not what is an entertainment of the same species or genus. We are at - loss to know why relator refers us to 8th Words & Phrases, 6937-8. On these pages it is discussed what is implied by the word “swear” or “sworn.” If ho meant to refer us to those pages of that work in which the word “such” is defined, it will be found in volume 7, pp. 6751-2-3-4, and to which we now refer. This brings us to the fifth or last proposition of relator, and that is whether or not operating a moving picture exhibition on Sunday is prohibited by article 199. All the authorities cited by relator, in their last analysis, but announce the doctrine declared by this court in the Boquemore and Muckenfuss cases, and that is, if not specifically named in the statute, it must be an amusement of the same character, kind or species to be included in the words “such other amusements,)’ and in this case it is specifically held that if the amusement is of the same species of amusement, it is within the terms of the statute and prohibited. Applying the rule thus announced in the Boquemore and Huckenfuss cases to the facts in this case, if the amusement is of the same genus or species as a theater, those cases and the other cases cited by relator, announce the doctrine that would remand relator. In the complaint in this case it is alleged that ■ the moving picture exhibition came within the definition of amusement of the character, kind and species of a theater. How, what does the word “theater” mean as used in our statute ? It does not mean the building, but the performance or exhibition given. Mr. Bouvier, in his law dictionary, gives this definition: “Theater—Although the term has an extended signification and comprehends a variety of performances, yet it is conceived that all which it does legitimately comprehend partakes more or less of the character of the drama.” He says: “A music hall is not a theater, but theatrical performances may include minstrel performances.” The Am. & Eng. Ency. of Law adopts this definition, vol. 28, page 116. And in col. 8, page 6937 of “Words & Phrases,” a number of cases are cited which also adopt this definition. A theater, as is commonly understood, is an exhibition or performance, with actors and scenery, presenting a play—it may be a farce or tragedy. The performers act a part or parts, and by their manner of presenting the play amuse, instruct and interest those who attend. It is true, they use spoken words, but a great part of the performance is in the acting, in the way the play is presented; the expression of the actors, the movements of their bodies and hands, the way the scene is arranged. A moving picture show can not be said to be a theater as that term is generally understood, because the actors in a moving picture exhibition in the scenes speak no words, but the scenery is there, the acting, the facial expression, and all the paraphernalia used in the theater is shown in the picture. Everything to be seen in the theater in a play is also exhibited upon the canvas in a moving picture exhibition; it is all presented except the spoken words. It is stated in the agreement that -the “court may take judicial knowledge of the nature and character of moving picture shows,” and while, in all instances we know, these moving picture shows are termed “theaters,”* yet the fact they are so called, would not make them theaters, yet it but illustrates that in the minds of the exhibitors, and in the minds of the public, .it is an exhibition of a similar character and kind, and of the same species. “Faust” is presented in the theater, and is also presented in the moving picture exhibitions; in fact, the moving picture exhibitions of which we have any knowledge are but representations of plays and scenes in real life. The theater is but a presentation of a play. One is the living person acting, while the other is the picture of the living « person performing the same acts. Thousands of persons have gone to see Madame Bernhardt act, who understand not a word of French, and yet all her plays are presented in the French language, hardly a person in attendance understanding a spoken word. And yet she draws magnificent crowds to see the play and the acting. By those who have seen her, it is said to be grand, and while she speaks in ' a language none understand, yet no one would be so bold as to say the exhibition given by her is not a theatrical performance, and an 'enjoyable one, too. In moving picture shows every scene in a play is depicted, pictures of actors are there, they are made to frown and smile, gesticulate, give evidence of pleasure or displeasure, and where one has read the play, -he can follow the exhibition from beginning to end understandingly, and especially is this true where a person stands by and explains each scene as it is thrown upon the canvas. Every person who has attended the moving picture exhibitions recognizes that the pictures ar.e reproductions of plays, in many instances acted on the stage in regular, theaters. We agree with relator, in the main, in the law as presented, except insofar as he would give to the words, “and such other amusements,” no meaning, for they can not be said to refer to another theater. The use of the word theater would embrace all character and kinds of a theater, and “other amusements” refer to some kind of amusement, and as said in the Eoquemore case, it means other amusements of the same genus. It is a question of fact, not of law, whether a moving picture show is of the same species and of similar character and kind of amusement as a theater, and if it is not of this species of amusement, we do not understand that term. It is but the presentation of plays and scenes from real life; the theater is nothing more or less. The moving picture shows present comedy and tragedy, as do the theaters. It calls forth thq same emotions from the patrons as do the theatres, to a greater or less extent. In fact, it is an exhibition of the same character and kind on canvas without spoken words. To hold otherwise, would be for us to nullify and render meaningless the words “and such other amusements,” and this we are no more authorized to do than we are authorized to enact laws. The legislative branch of the government write and enact the laws, and the courts are but to construe and enforce them. When the Legislature, by law, provided that “theaters and such other amusements” are prohibited on Sunday, they meant something besides theaters, or they would not have used the additional words, “and such other amusements.” In their broadest signification these words would embrace every character of. amusement on the Sabbath to which an admission fee is charged, but in the Eoquemore case, this court has given to those words a" limited meaning, and held that they mean amusements of the same species, and of similar character, and kind, and further we can not go, for to do so, would be for us to nullify a statute. A court is not authorized to ignore entirely words of general import, which follow words of special designation. This court in adopting the rule of ejusdem generis, in construing this statute, did so with the knowledge that the words, “and such other amusements,” had a meaning, and in the Eoquemore and Muckenfuss cases so declare, and was intended by the Legislature to apply to other amusements of the same species. In adopting such construction, this court had in view the other well known rule of law, that if to apply the rule ejusdem generis, would give to the words no meaning, it would not apply, but the general meaning of the words would be given force and effect and embrace all character of amusements. As is said in Sutherland on Statutory Construction, section 437: “In cases coming within the reach of the principle of ejusdem generis, general words are read not according to their natural and usual sense, but are restricted to persons and things of the same kind and genus as those just enumerated; they are construed according to the more explicit context. This rule can be used only as an aid in ascertaining the legislative intent, and not for the purpose of controlling the intention or of confining the operation of a statute within narrower limits than was intended by the lawmaker. It affords a mere suggestion to the judicial mind that where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace any other than those within the class. The suggestion is one of common sense. Other rules of construction are equally potent, especially the' primary rule which suggests that the intent of the Legislature is to be found in the ordinary meaning of the words of the statute. The sense in which general words, or any words, are intended to be used, furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning will be given, according as the intention is thus indicated. The doctrine of ejusdem generis ydelds to the rule that an act should be so construed as to carry out the object sought to be accomplished by it, so far as that object can be collected from the language employed. ‘But the doctrine of ejusdem generis/ says the Supreme Court of Minnesota, ‘is but a rule of construction to aid in ascertaining the meaning of the Legislature, and does not warrant a court in confining the operation of a statute • within narrower limits than intended by the lawmakers. The general object of an act sometimes requires that the final general term shall not be restricted in meaning by its more specific predecessors/ So the restriction of general words to things ejusdem generis must not be carried to such an excess as to deprive them of all meaning. The enumeration of particular things is sometimes so complete and exhaustive as to leave nothing which can bo called ejusdem generis. If the particular words exhaust a whole genus, the general words must refer to some larger genus. ‘If the particular words exhaust the genus, there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.’ The general words are not to be rejected, and the maxim ejusdem generis must yield to the maxim that every part of a statute should be upheld and given its appropriate effect, if possible.” Thus, if we were to reject the rule announced in the Boquemore and Muekenfuss cases, those general words would of necessity embrace every character of amusement to which an admission fee is charged, and some contend that this is the proper construction, yet as this court has held in those two cases, that these words must he given the narrower meaning, and that they refer alone to amusements of the same species or genus, we are inclined to follow them, and in construing this statute, we have followed the rule laid down in the Boquemore and Huckenfuss cases, and by no rule of law can it be further extended, without entirely rejecting the general words used, and this a court is never authorized to do. Being of tlie opinion that a moving picture show of the character and kind presented in this State, comes within the definition of amusements of like character, kind and species as a theater, and while not a theater, yet it is of the same genus, relator is remanded. Our statutes refer to a “horse” and this term has been held to embrace a mare, a mule, a jack, a jenny, as they are all of the same species, and many illustrations might be cited as holding that all things of the same genus are embraced, even when not followed by general words, but we deem it useless. „ Relator remanded to custody. Prendergast, Judge. I concur. Davidson, Presiding Judge, dissents.
DAVIDSON, Presiding Judge, (dissenting.)—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 writtten 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 34th, 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 ip. 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 of 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. Ho 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 authorit}1- 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 Texas Crim. Rep., 282, 131 S. W., 1101; Ex Parte Muckenfuss, 52 Texas Crim. Rep., 467, 107 S. W., 1101; Crow v. State, 6 Texas, 334; Ex Parte Hull, 110 Pac., 256; State v. Prather, 100 Pac., 57; Ex Parte Neet, 57 S. W. Rep., 1025. On third proposition. State v. Cody, 120 S. W. Rep., 267; State v. Penny, 111 .Pac., 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 Texas Crim. Rep., 282, 131 S. W. Rep., 1101; Crow v. State, 6 Texas, 34; 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 other public 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 Texas, 334. It is clearly expressed and applied in Ex Parte Muckenfuss, 52 Texas Crim. Rep., 467, 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 Texas Crim. Rep., 282, 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 dobtrine 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 Texas Crim. Rep., 467, 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 gene'ral 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 eases 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 Atl., 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 ease the court considered the identity, likeness and similarity between a circus and a wild west shoAV. 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 ease of the State v. T. C. Penny, 111 Pac., 727, in an opinion decided on the 15th daAr of Novemher, 1910, construed the following statute by that State. Article 8369, of the Eevised 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 t