Hegman v. StateHegman v. State
- Reporters:
- , , ,
- Before:
- Davidson
*1 88 Texas Criminal me, was it seems the applicant, v. Palmer Under Rhode Island custody.” discharge entitled to his Hegman v. State. J. J. February finally 1921. and first in December 1920
No. 5619. Decided Picture—Requested Charge. Law—Moving —Sunday 1. 302, Code, Where, upon evidence trial Article Penal a violation of of fee, charged kept place open, an admission that his said showed defendant present picture show, large people and that had a crowd of his and reel Flags,” day a series of entitled “Under Four shown on said sanction, up gotten error in re- was no under Government
which was there they charge fusing defendant amusement on such of the requested telling that find before could kept open guilty they his of that find he that therefor, fee and theater, theater, or or a amusement either a circus, theater, as a or theater. nature same or kind —Same—Ejusdem Representation. 2. Generis—Statutes Construed—Dramatic go analysis dis- While does an extended the court care into theaters, circuses, dramas, picture similarity of cussion shows, etc., between application ejusdem generis, nor of of extended the rule already exhaustively, by way analogy.’ as this has done it cites 7355, Statutes, 13, Article Civil which classes all theaters Sub-Division dramatic together representations purposes for of taxation. Question Fact—Requested Charge. —Same—Question of Law and 3. Where, sought charge special it left defendant to have facts, jury was of case, upon practically agreed toas whether not the instant the when this was a question like or class with theater kind circus requested refusing for law was therefore no error in charge. Following Commonwealth, Capital Company Theater v. 100 W. Rep., 1076, and cases. other Decision—Moving —Same—Precedent—Former Picture. 4. 30, Lingenfelter, In case Ex other Parte Texas Grim. cases, affirmatively passed question this court as to whether fee, pictures exhibiting for an admission theater, the life of Christ—was of the same kind and class held 302, Following was in Penal that it violation of Code. Zucarro Art. Rep., 1, cases. Construed—Ejusdem Generis—Question
5.—Same—Statutes of Law. Ejusdem not for the Generis court and is one by moving pictures jury, attempt re-production live actors at things, persons which an admission fee the acts and deeds of other class, kind, species charged, of the forbidden Article Penal is Code. refusing give Therefore, trial did not err in court defendant’s dissenting. charge. Davidson, Presiding Judge, Besides, requested the re- theater, quested definition of a etc. contained no —Same—Legislative Construed. Construction—Statutes Code, may as indicative Vernon’s Penal well be looked legislative expression purpose intent in “the use of the term It is declared has in this connection. about which so much been said (Regular part purpose caption said act article opera houses, Session, 1907) theaters, playhouses, and other to declare *2 amusement, buildings public places by known show whatever name to be statute, a later enactment which is and Section I of said is so enacted in dissenting. Presiding Davidson, Judge, than Article Penal Code. —Same—Sunday Law—Theater—Question of Law. 7. displayed moving picture is where drama is is a A show the and Sunday statute, coming species and law whether within our a theater question prohibited given a statute of law the is one the fee, etc., Sunday, a for an admission and on whether it was exhibited rep- moving picture in actual fact a scenic show is The fact. performance. Fol- resentation, entertainment and a Davidson, Rep., 158, Myers State, dissenting. App. lowing and cases. 5 Ohio
Presiding Judge, —Same—Sunday Show—Amusement. 8. Law—Statutes Construed—Picture only picture depicted pleasur- That, amusement, excite the anbe artists, great acting to minimize the dramatic able emotions is portrayal stage camera, only speaking before the whose tragedies moved thousands of life have sorrows tears. —Same—Tragedy—Melodrama—Comedy—PictureShow—Theater. 9. 302, C., person P. under a held a violation of Article A be for could performance operating a a theater on whether guilty operat- comedy, tragedy, melodrama, ed melodrama, would likewise who one tragedy, depicted Sunday, moving picture the screen on a whether comedy, moving pictures embraced are ago. thirty-four years, passed
although the same Tried below before County Court of Travis. from Appeal Pickle. Honorable D. J. law; a of the Sunday pen- a conviction of violation
Appeal fine of alty, a $25.00. the case. states Sheldton, Love, Lewis, and A.
McGregor, Burr & Shelton & L. Muckenfuss, 1131; Rep., Parte W. S. appellant. Cited Ex 1101; Parte Rep., Lingenfelter, Parte W. Ex Roquemore, S. Zucarro W. S. W. General, Owsley, Alvin M. Assistant Attorney State.
Cited cases in opinion. Appellant was
LATTIMORE, convicted of Judge. keeping open a show on a given fine $20. owner, the record was the gather appellant proprietor, From we Show, Austin, Picture operator Queen Moving same being a regularly moving licensed show.
On the mentioned in the day complaint, appellant kept said place fee, open, charged an and seems had large to have crowd 88 Texas Criminal {February, was a series of day pic- reel on said shown of people present. to be a part Flags,” appeared Four entitled “Under tures headed Mr. George the committee Creel. work of publicity the kind or was not of class forbidden that his show claimed Appellant Code; and that it was a question our Penal asserted 302 of by Article this end asked jury, that should be submitted fact charge: following special that not amusement gentlemen every
“You are instructed charged an admission fee is exhibited and to which which is Sun- are law, of the law but such as forbidden day is violation and to which an admission an amusement which is exhibited fee is a theatre and which is nor a kind, character or nature or or is not of same genus circus, theatre, theatre is not You against law. therefore that before can find the defendant you guilty instructed *3 case, that he a kept open place must not find of amuse- you ment on and an admisión fee thereto but you must further find from the evidence that such amusement was either a cir- cus, theatre, kind, a or a theatre or was of the same character circus, nature as a theatre or and unless do so you find, you will the defendant.” acquit in record to that the nothing
There is indicate show of appellant was in wise different from the other any regularly licensed and operat- shows, ed nor to combat the moving picture proposition that its con- amuse, tinual to business was instruct entertain the public, for a by consideration exhibition of all kinds and of characters moving nor do we think that the fact that on this particular day, in a Law, of the probable operation effort evade pic- ture show was to show scenes and incidents operated only connected war, with the take it of the inhibition of would out Article 302 of our Penal Code. others, of the of
Impersonation another, acts however realistic or drama, life, true to is but which is defined to be something intended to life, exhibit of human a series of episodes depict grave or humor- interest, more than toward ordinary tending ous action of some strik- It is to be ing commonly designed spoken represented result. by stage. actors divisions principal tragedy comedy.- That the of the to be original thing attempted reproduced,, was a real occurrence,—whether nations, a as of a war between tragedy, a combat- life,—would individuals,—or a in actual comedy between not change the fact that its be a reproduction play, would drama. If General with a men who had Pershing, company ex-service braved the perils Forest, of the Argonne present propria Meuse should persona, deed, and by word and a reproduction thrilling occurrences of tent, house, enclosure, a days, those for consideration, this would be a drama. acting,—but times, that history current known, as a part It well scout, carried years brave soldier F. Cody, Col. Wm. horses, outlaw cowboys, genuine country, group end to end of this coaches, realistic and presented Indians, stage battle-scarred real his- country’s of our the earlier days of occurrences reproductions ’ lawmakers, was so his our tory, yet, together the two Sub- linked like, they or similar to Statutes, exact the same our Civil 14, Article 7355 of division In subdivision show.” circus or wild-west every fee “from license are class- Article, representations, dramatic theatres and all same into go do care of taxation. We for purposes ed together the- similarity between of the actual discussion analysis or extended dramas, shows, etc, appli-
atres, circuses, any nor of extended which we things to these various ejusdem generis, the rule of cation of circuses, to theatres like kind and class being.of have mentioned as this Court exhaustively done ably already for this has before us. to the one other cases similar left as jury to have it special charge, sought by Appellant facts, agreed practically instant
to whether or think circus. do not like kind with a theatre or We was of or class the courts has it been so considered nor question, of Capital In the recent case with whose we are familiar. opinions Commonwealth, 1076, it sought Rep, Theatre Co. v. W. show on held a have the labor in operating works of and works necessity, exempting charity under a statute appellate In its court of necessity Sunday. opinion, Kentucky, “The significant language: agree uses the authorities also following having whether the work been done complained *4 Sabbath, necessity a or facts charity,—the being on the es work tablished‘, case, of law or in this one for the agreed,—is court.” In case, 282; 1101, the Crim. 131 Rep, 60 Texas W. Roquemore Rep, S. held that the question cited and relied on we as to appellant, whether for the of a baseball on which an game admission theatre,—was the kind class as a fee was was of same one charged, class, kind, this that it not for the Court decided was of such case, 30, In the elter 64 Texas Crim. species. Lingenf Rep, 142 S. upon Court the Rep, 555, passed affirmatively W. question as to show, a whether on for an moving picture exhibiting Sunday Christ,—was fee, of the life of of the same kind and class as a and we the same to be such and a held violation of Article State, holdings, 302 of our Penal Code. For similar see Zucarro v. 82 1, 982; Zucarro, 197 Rep. Rep., parte Texas Crim. W. Ex 72 S. Texas 844; State, Rep, 162 v. Rep, 214, Lempke Crim. S. W. 76 Texas 125, 217; State, Rep, 171 W. v. 77 Rep, Crim. S. Texas McLeod 365; 117; State, Rep, 180 Rep, Spooner Crim. W. 79 S. Texas 44, Rep, 182 W. Rep, Crim. S. 552 88 Texas Criminal Muckenfuss, Rep., In parte Rep., W. S.
1131, Court, discharged, for the relator Judge ordered Ramsey, he the determination us that the for which was judicial offense facts, kind, not, was under the of the and class as genus, held same offenses, In prevent injunction Humphrey to which would lie. those an State, 434, 34 Texas Crim. we held that was substantially not submit a to unless proper jury special acquit, to to instruction the tables used kept gaming and dominoes were specially purposes. uphold judicial We determination of courts that it is not proper jury question submit whether whiskey intoxicating. When murder is been with have committed a gun. shown to with have done a we not submit to pistol, jury do of whether the al question ejusdem generis would Nor when apply. horse, theft is of do we legation submission require mare, as whether or a colt question gelding, kind, class, same and species might as a horse. illustrations Similar In multiplied ad Graham v. W. infinitum. of Tennessee a trial Supreme Court the action of court in upheld that a judicially determining picture show was such kind moving class of business as to make it violative of a statute the do forbidding Morris, on of the common life. In ing avocations of State v. Atl., 479, court in appellate Delaware determined that judicially show was of such kind and class as make a viola tion of a which forbade statute circuses without exhibiting licenses. Wilson, In Clinton v. Ill. court deter appellate judicially mined that show was not ejusdem generis a billiard room, baseball ground, alley; ball and held that a pin moving pic ture show not within the inhibition of a law forbidding such named amusement, places, to run Sunday. In the there instant no practically contest over the facts. owner, testified that he was the Appellant operator, and proprietor Show, Picture Queen Moving which was a regularly licensed pic- show, he says ture was run said as it Sunday, just was run license, on other one days. Speaking place of he he it; framed, that it did on the wall of the theatre. Ap- further testified that on the pellant question, the crowd large present to view particular question, paid cents twenty each admission fee. Our conclusion is that the ejusdem generis is “one for the court and that jury; at attempt re- actors, production live by moving pictures or of the acts and deeds of *5 persons other things, which is fee is charged, class, kind and species Code, forbidden Article 302 by of our Penal that trial in court did not err refusing give special charge requested. above,
In to the addition we call attention to the fact that the special charge theatrej etc., under discussion no contains definition of a if it had been submit proper to question whether pic- theatre, etc., as a kind and character like ture show sub- told the or way jury, in some unless same would be insufficient aas them, that which was used and character of the nature mitted to in the “theatre” has definition The word of comparison. standard in of this none the laws but we know of of the lexicographers, works Code, further which will be Penal in Article 1480 of our except the Cen- Dictionary, International In both discussed. Webster’s edifice, in which or a room theatre is defined as an tury Dictionary, assembly; to an be exhibited may dramatic spectacles performances observed; the bemay of events take locality place, where a series in the Zucar- drama; note We representations; stage. Penal Article 1480 of Vernon’s reference is made to supra, ro 1907, for its in not having enacted and while Code. This article was not to be in it in the case is held Zucarro regulation, purpose Sabbath had, 302, C., which this prosecution P. conflict with Art. intent and legislative pur- indicative of the be looked to as may well which so much has about expressions in the the terms and use of pose of said article caption in the in It is declared been said this connection. Session, 1907) part of the Regular Acts (See page houses, houses, theatres, opera play declare Act is to of said purpose known, to be public name whatever buildings, by other show statute, that in 1 of said It is enacted amusement. Section places constructed, fitted, theatrical purposes, equipped all buildings houses, houses, theatres, or des- play opera called commonly which are name, public performances, when used for other by any ignated dramas, and other shows operas, of plays, and exhibition production nature, are charged, public which an admission fee is whatever last word in com- take that this is the of amusement. We houses construction, fitting equipment, building If by prehensiveness. house, theatre; called a commonly opera or if same is be a house, give play, and same is used designation, other play to which an admission fee is charg- other show drama, opera, any ed, a later to be a house of amusement. This is public it is declared think compre- Article and we its unquestioned enactment than in definition of amuse- public shows its hension ment, construing considered While properly statute, of a or its definition of a true that the construction legislative statute, cannot control the judgment similar term courts, other where weight it is entitled to and consideration cases yet of a declaratory there Article 1480 is a statement definition is doubt. which makes a house of amusement Legislature, plainly subject include a show. Our conclusions on this hitherto and cases, reason, based on deduction and largely named article. fortified and aided reference said last record, raised, examined this and the Having carefully questions no of the trial finding error same will be judgment affirmed. Affirmed. *6 {February,
554 Criminal Texas Presiding DAVIDSON, (dissenting). Judge, that he testified was MORROW, Judge, (concurring).—Appellant Theater, in which moving Picture Moving Queen the proprietor therefor; that he had a license profit, were displayed pictures charged open, his of business Sunday kept” place he that on These moving pictures. and exhibited for entering fee an admission Four “Under a entitled moving picture as being he describes pictures incidents designed display of a series of one Flags,” being in the war the United States participation preparation said, under the aus- he were prepared The pictures, Germany. government. pices thus: jury the court instruct
He requested in this must not you find the defendant guilty can you “Before amusement on place Sunday a open that he only kept find therefor, further find from you fee but charged an admission theater, a a or a was either such amusement the evidence circus, theater, theater, as a same kind or nature was find, theater; do will the de- you so you acquit unless fendant.” instructed the to deter- charge, court refused of a moving picture was appellant proprietor
mine whether the for the theater, open of business kept place Sunday whether he show, amusement, therein a moving picture and exhibited purpose think, I These, fee. were the facts for the jury an admission charging Procedure, in Bishop’s It New Criminal vol. to determine. is sec. 908: terms, it law for the court deter-
“In is a general question acts intent mine whether combination of constitutes a alleged crime, whether or not defendant did the question fact and entertained intent.” things
As the statute does forbid construed to which an fee game baseball admission is is, parte, Roquemore, Rep., 282); does not (Ex amusements, all those named in the include statute and others like or similar thereto. understood,
As commonly place show is a where displayed, species coming drama of theater within our 302; Sunday law statute. P. C. Art. parte Lingenfelter, Texas State, Crim. Zucarro v. Crim. Texas There were no controverted facts this case. Whether the exhibition was given statute, law, prohibited one under our was a question and whether it was exhibited on for an fee in appellant’s moving theater, question of fact.
“The fact a moving show is representation, scenic best very scenic authority-a representation a theatrical entertainment or performance.”
Myers 5 Ohio 158. The exhibition App. Rep., to enter- and exhibited designed senic representation. business, de- tain the It was public. displayed appellant’s *7 in the exhibition of amusements signed exclusively used for the time, I think it bemay safely form of At the present moving pictures. said, amusement the exhibition of that the means of greatest public uses, that other some moving pictures. moving pictures It is true educational, In p. some International vol. 378. Encyc., scientific. my not amusement divert the opinion, public essential that It if Among audience. definitions, it is to entertain them. designed suffices entertainment,” “a an pastime,
an amusement is defined as instruction, and the latter “a enjoyment, is defined mental amuse- ment by anything Dictionary. afforded seen heard.” Century writer,
In the err in trial court did not opinion of holding under the facts the acts of the constitute appellant violation of I therefore concur in the law. result.
December 1920. Presiding DAVIDSON, was con Judge. (dissenting.)—Appellant 302 showr exhibiting picture victed under Article P. C. for moving Sunday. performance cases, That statute before several notably has this court Ex 30; State, Texas Crim. Zucarro
parte Lingenfelter, also parte Roquemore, Texas Crim. Rep., I have to say mainly standpoint What shall will be from the n majority adjudicated cases In the opinions Roquemore cited. case, an ball Judge it was held that a base Ramsey, game C., not within the inhibition of 302 P. because similar nature and character to a performance, variety show or That ejusdem circus. decision rested on the rule of All generis. sub must, sequent cases have been decided that view law. It under therefore, be a amusement or an place “amusement” as de nounced under by the statute those cases. This necessarily involved question of fact as whether the exhibitions were’ of similar na to a ture supra. or circus. Zucarro v. If that correctly rule was not applied, decisions are those bottomed on a wrong If basis and are incorrect. the facts do not bring case with rule, in that the exhibition is not the term within “such other amuse ments.” Under the statute necessarily picture exhibited must be one “amusement.” The which forms basis language of such prosecution is as follows: “. . permit . or place business or of amusement to be for the open purpose of traffic or public amusement on Sunday. . . The term ‘place . amuse circuses, theaters, ment’ shall be theaters, construed to mean and such other amusements as are exhibited and for admis fee sion The “and charged.” such other language amusements as Texas Criminal char- gives charged” fee is an admission for which
are exhibited amusement.” of “public are descriptive acter to and fact as Therefore, it becomes a the decisions If the decisions so of “amusement.” is one whether the theaters, exhibited to those in character similar it must be one hold exhibition must point view From and circuses. variety shows theaters, variety are Moving of “amusement.” be one but imitations They pantomime. It can show or circus. exhibited is picture If the to be exhibited. thing of the real sought In this case fails. case class, either State’s not an imitation exhibition, the the character of refused to prove not but did State to bring upon It State devolves the screen. thrown be an statute. must the rule announced within so, do State urged defendant “amusement.” This was overruled. of not guilty. to a he was entitled verdict failing ex- open, that the house was the fact only upon relied *8 State evidence without any had, charged, a fee for admission hibition the exhibited. picture of the character as to that the jury asked appellant testimony closed its the When State presented This was guilty. charge to find him instructed be parte Lingenfelter, been given. have The should refused. State, 81 Texas Crim. Rep., Zucarro v. 252. There 60 Texas Crim. and Roquemore by far the court what permitted as then as Appellant proved cases. had written out full de characteristics. He and its picture the was appellant, offered but by exhibited. This was picture scription in He was per him adduce it evidence. to to permit the court refused mitted, however, pictures the of exhibited. give orally description to that this is of should reserved. The writer Exception was it have to them clearer and conveyed the as would gone to the testimony Under witness’ the picture. more accurate idea theater, neither a show nor was shown exhibited picture of either. It bore no resemblance either. nor an imitation This the then asked refused. writer An verdict was instructed the cases cited. granted thinks should have shows that United entered Appellant’s testimony when States war established commission great government world-wide thet information, on the official battle lines placing photographers and on soldiers from the United France transports carrying States ’ factories, work, also at the munition Red Cross Europe; things loan drives and other victory pertaining various activities Mr. Creel was chairman of this George war. made commis- of sion. Members this commission were of Secretary Navy, Secretary Daniels, Mr. Secretary Mr. Mr. Baker and War Eans- There a series these ing respectively. pictures by was command commission. These were be used as long necessary for war The entitled first was “Per- patriotic purposes. picture of busi- in his appellant It exhibited was shings Crusaders.” where army camps various showed picture ness in The Austin. shoes, kin- trained, clothing getting supplies, being soldiers were in readiness for service. put boys our dred matters of preparation It Answer.” “America’s entitled next in series was picture build- America and progress in France showed docks built taken and used. at the ing time picture This was the Flags.” Four entitled “Under Another arrested, Sunday appellant on the on exhibition particular picture testi- of this conviction. forms basis and which exhibition fol- about as Flags” Four to this “Under mony in regard the ocean to across Eu- of soldiers transporting It showed the lows : bombs, screens, the sink- of depth use smoke rope, convoys, such as front in submarine; the battle along it actions showed ing a German in the battle, fights movements the aviation the actual activities air, it the victors and showed airplanes; down German bringing Versailles, the selection and at of allied generals vanquished, meeting commander, the conferences as supreme of General Foch appointment engaged armies commanding great between the generals action, war; battle; armies in showed tanks in actual showed battle, it showed the boys top; the American over the going American, It all French and Italian. allies, action of big guns the allied forces all showed at battle front of wounded soldiers Cross, strife; workings that terrific battle line the Red along and the showed the actual occur- corps. ambulance ambulance front; taken at the battle it showed the Red Cross in action ring scenes and the care of the wounded and Army engaged taking Salvation boys and their attention to American in their feeding hungry, *9 huts; it mission of It showed the Y. C. A. showed the mercy. M. the allied armies Ger- they swept through victorious advance of the fortifications, the It man across their trenches and over showed top. men, French women and children seeking refuge safety refugees, It the the battle of Chateau Thierry behind allied lines. showed the It taken on showed the battle scenes on the photographs ground. It Italian front as they actually portrayed only occurred. oc- place, all the they exhibiting currences as took horrors millions of men in engaged along greatest battle lines the world’s with history, destruction, all its death and desolation. These gruesome pictures were taken official not of the United photographers States but the four nations the allied armies. These ex- constituting were hibitions of actual battles war. It stage plays action of or imitation of theatrical nor exhibitions vaudeville playing, or theaters, nor the variety shows movements and clown display ordered, It actions of a pictures circus. showed endorsed officially and exhibited to arouse our life the emergencies national to of the great death struggle which our to re- country engaged our preserve publican form government. country was of war stress 88 Texas Criminal pictures its life were ex- which involved and its and these government, if hibited all over our command country by authority It be said that government, as a war measure. these cannot The movement high officials would order all this as “amusement.” were for and different There was purpose. exhibitions another highest possible patriotic behind emotions and motives for the before of that purpose bringing our more incidents people clearly terrific war struggle, by portraying to awaken interest stronger lines, them visibly tragic on screens the events the battle along sons, relatives, realization of fearful their through ordeals brothers, husbands and were It passing. friends official ap- peal Americans. patriotic “Under Four was not Flags” play, performance. vaudeville exhibition nor was a circus It was the exhibition of death It battle, scenes and desolation. would be worse than vain than and more useless to undertake to im- son, husband, press the mother who had her her given and the wife brother, Michel, the sister her to fall at Chateau to die at Thierry, St. Forest, or fill a soldier’s grave Argonne idea that the portrayal tragedies of such and death German scenes from shot and shells “a It constituted of amusement.” be impossible would anything conceive more to any conception obnoxious of amuse- gruesome than ment exhibitions. is abhorent to sense of any humor to call such exhibitions “amusements.” The writer is of opinion can not be within the case brought Lingenfelter that line of cáses. The so disprove. facts do not disclose The ques- tion of from the morals is not standpoint public power involved C., and can not be. Under Article 1509 P. immoral can not time, be at anywhere exhibited any Sunday day other of the week. They are forbidden cannot be exhibited under character regulation, whether it be Monday. writer is of 1480, 1481, opinion that Articles 1482 and 1483 can not aid in sup- porting this conviction. Those articles are intended to regulate ex- hibitions of amusement and places houses where the ex- hibitions They occur. have the same reference exhibitions as to If days those on of the week. it be to impair held Article terms, 302 and its then that extent change would conflict repeal because of their later enactment. If in those places ex- hibitions occur could these articles regulate would their exhibition as therein. If prescribed they repeal Article 302 and there- shows, course, by permit Sunday picture should re- versed, because that view those articles would justify the ex- *10 hibitions on Sunday, subject to specified regulations.
There are other I questions I shall not discuss. have said this much I because am of that if opinion the decisions heretofore an- nounced correct, are not case does come their purview, within this conviction cannot be sustained them. The court should charged or should have acquittal, given the asked charge by appel- 1921) trial presented urged are properly matters These lant. come rendered could yet no decision Under court. applied, be statute, ejusdem generis the rule of within the whether the rule of independent amusement” “place be held
the place when only apply in either can statute event The ejusdem generis. include not authorized This court is “amusements” exhibited. as “amuse- than those specified things statute term “amuse- included exhibited is not thing If the ments.” facts, depends upon the statute. it is within ments” think, similar character.” of a like or I amusements “clearly, must be here do not The facts p. 4. 82 Texas Crim. Zucarro v. character” of “like or similar the rule within bring picture theater, I Judge As understand or circus. Lattimore’s variety show inclusive of rendered since and cases previous all overrules opinion the proposition and announces the Roquemore statute, is included fees are amusement where C., to the character of the exhibi- reference 302 P. without tion.
I the decision. dissent from respectfully
ON REHEARING. 23,1921. February affirmed, HAWKINS, This casehas heretofore been Judge. dissenting. dissenting judge Davidson Judge the late lamented the bench and bar of Texas. His high regard by has been held long law, and lovable expression, profound knowledge vigor none with regarded loyal have been more esteem traits as man than This has caused me make close inspection the writer. and authorities record and examination statutes reviewed in both the affirming dissenting opinions. and discussed con has been reached reflects the majority clusion cor the law. Considerable has been said as to the interpretation rect exhibited on the screen upon character the occasion com That to an “amusement” the plained depicted of. to’ excite emotions is minimize the pleasurable acting great only upon speaking stage dramatic but before the artists camera of the sorrows and of life tragedies whose has moved thou portrayal divert, entertain, instruct, sands to tears. Pictures which or excite ás truly mirth would be “other amusements” under the statute as a play accomplishing these ends would be a stage A performance. person could be held a violation of Article 302 C., theater on operating P. whether the performance was a melodrama or One tragedy, comedy. would be likewise who guilty operated moving picture whether *11 88 Texas Criminal the screen depicted tragedy, melodrama or comedy. some of the of the
question portrayed great tragedies war. mov- ing picture today perchance show of evolution was not even dreamed of thirty-four when Article 302 of the Penal years ago Code enacted, but the of that article language is broad to em- enough them, concluded, brace court so is not’ within having our them province except from the operation law. Only law- making body could do this if it proper. saw
The motion for rehearing overruled.
Overruled. May Thompson Bell February 6133. 1921.
No. Decided Manslaughter—Statement Appeal. of Facts—Practice facts, exceptions In the of a statement of absence etc., appeal judgment reviewed cannot be be affirmed. District Court of Tarrant. Tried Criminal
Appeal below Hosey. before the Hon. Geo. E. of manslaughter; from a conviction two
Appeal penalty, years im- prisonment penitentiary. appellant.
No brief on file for General, Cureton, for the Attorney C. M. Cited Simpson State. Law, Branch’s Criminal Page W. Upon an HAWKINS, indictment for murder Judge. the appellant of two manslaughter, punishment years was convicted penitentiary. accompanies of facts record. No objections
No statement were and no were charge, exceptions made to the court’s reserved to failure refused, which were charges absence of give special ex- court and statement of facts this no ceptions position to review The record does not the matter of such failure. even contain a mo- trial, for new but states: “Defendant’s motion for new tion trial has and cannot be located.” attorneys been misplaced record, errors on the face appearing is af- judgment No firmed.
Affirmed.