2 Ga. App. 389 | Ga. Ct. App. | 1907
The plaintiff in error was convicted of a violation of the Penal Code, §422. The judgment overruling his motion for a- new trial is brought to this court for review. The undisputed evidence, substantially stated, is as follows: He was a barber pursuing his business and work of his ordinary calling during the week in a shop in the city of Pome. On Sundays he went to the house occupied by the “Elks Club,” and in a room set apart for the purpose he shaved members of the club, receiving therefor whatever the members saw fit to give him. No other persons except members were shaved, and no compulsory charge was made, but the amount paid by the members was twentj^-five cents a shave. It was also shown that some of these members, on account of being engaged all day Saturdat’, could not conveniently get a shave on said day, and, in order to present a decent appearance in attendance at church, they thought it necessary to get a shave on Sundays. It is insisted by the plaintiff in error that tinder this evidence there was no violation of section 422: (1) Because there was no 'consideration demanded for the work. (2) Because the shaving of the members of the club, under the evidence, was a work of necessity. (3) Because the plaintiff in error was not engaged in the work of his usual and ordinary calling at his usual place of business, but the shaving in question was occasional and performed at a private house and confined to the members of the club, who were
The contention of the plaintiff in error, that the work of shaving .the members of the club was a work of necessity, because such . members, by reason of their occupation on Saturdays, could not get a shave, and cleanliness demanded a daily shave, can not be reasonably upheld. While shaving may be regarded as an act of personal cleanliness, desirable to be performed upon the first day as well as upon other days of the week, still this fact does not make shaving necessary or the work of the barber one of necessity. The statute makes no exception in favor of a man who can not shave himself, or who can not conveniently procure some one to shave him on a week day. Many States have statutes expressly prohibiting the opening of barber-shops on Sundays, and expressly declaring that shaving is not an act of necessity. But it needs no decision of the courts or the declaration of the statute to convince men of ordinary intelligence and experience that shaving is not a work of necessity within the meaning of that term as constituting the exception in the statute now under consideration.
We are clear that under the undisputed facts of'this case the plaintiff in error was guilty of violating the Penal Code, § 422, and that the evidence demanded the verdict against him. His offense was not a very flagrant violation of the law, but it was a violation. “Opinions may differ, and they really do differ, as to whether abstaining from labor on Sunday is a religious duty; hut whether it is or not, it is certain that the legislature of Georgia has prescribed it as a civil duty,” and makes a violation of this duty a-criminal offense. Hennington v. State, 99 Ga. 399. Judgment affirmed.