Crook v. Commonwealth

• Decision Date: 20 January 1927
• Citation: 147 Va. 593
• Parties: T. A. CROOK, ET ALS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 593

147 Va. 593

T. A. CROOK, ET ALS. v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 20, 1927.

1. SUNDAYS AND HOLIDAYS — Professional Baseball — Professional Baseball Players Engaged in a Game on Sunday for which They Received no Extra Compensation and for which no Admission was Charged. — Defendants, professional baseball players and umpires, under contract to umpire and play for professional baseball clubs during the season, at the request of their managers, engaged in a baseball game on Sunday for which they received no extra compensation and at which no charge was made for admission.

Held: That a conviction of the players and umpires for violating section 4570 of the Code of 1919 should be sustained.

2. SUNDAYS AND HOLIDAYS — "Labor" — "Calling" — "Trade." — As used in the Sunday law, section 4570 of the Code of 1919, "labor" means physical or mental toil; bodily or intellectual exertion; "calling" means one's usual occupation, vocation or business; "trade" means any occupation or employment pursued as a calling; the business which a person has learned and which he engages in for procuring a subsistence, or profit, especially a mechanical employment.

3. SUNDAYS AND HOLIDAYS — Professional Baseball. — Professional baseball is a "trade" or "calling" within the purview of section 4570 of the Code of 1919, and where the players are paid regular salaries, the fact that they received no special compensation for engaging in an exhibition game on Sunday is immaterial.

4. SUNDAYS AND HOLIDAYS — Unprofitable Work — Section 4570 of the Code of 1919. — The Sunday law (section 4570 of the Code of 1919) was not intended to punish only those whose business is profitable, but all not excepted by the statute, who are found laboring at a trade or calling on Sunday. The object of the statute being to make Sunday a day of rest, a person who performs the same labor on Sunday which he performs in his regular trade or calling on the other days of the week, cannot escape the penalty of the statute by working, without compensation, and claiming that he was in fact playing and not working.

5. SUNDAYS AND HOLIDAYS — Section 4570 of the Code of 1919 — Sport. — One who engages in a pure game of sport is not amenable to the Sunday law, section 4570 of the Code of 1919. The amateur who plays baseball on Sunday is not laboring at his trade or calling within the meaning of the statute. Playing baseball is not his occupation or vocation. Unlike the professional player, whether he plays on Sunday or a week day, the amateur engages in the game as a sport and not for the purpose of procuring a livelihood.

6. SUNDAYS AND HOLIDAYS — Works of Necessity or Charity — Professional Baseball — Questions for Jury — Case at Bar. — In the instant case, the question, whether the playing of the game of professional baseball on Sunday, under the circumstances disclosed by the record, was a work of necessity or charity within the meaning of the statute was rightly submitted to the jury under proper instructions.

7. STATUTES — Construction — Sunday Law — Judicial Notice of Attempted Amendment of Statute. — Using the knowledge it has of political and legislative history in this State, the Supreme Court of Appeals will take judicial notice of the fact that a bill introduced into the Senate of Virginia, by the senator from Norfolk county, in 1926, amending section 4570 of the Code of 1919, by providing that it should not apply to athletic fields or outdoor sports open to the general public after the hour of two o'clock post meridian, failed of passage. This is an indication of the legislative policy in Virginia.

8. SUNDAYS AND HOLIDAYS — Professional Baseball — Instructions — Case at Bar. — In the instant case, a prosecution for violation of the Sunday law, the jury were instructed that if they believed beyond a reasonable doubt that the defendants were employed under contract by the Portsmouth Baseball Club or Richmond Club to play professional baseball for competition for the season beginning April 16th and ending September 12th, and said employment constituted their trade or calling, and that pursuant to or in consequence of said contract the said defendants engaged in a professional game of baseball on Sunday, May 17th, they must find them guilty unless they believe from the evidence that said game was of necessity or charity. The irresistible inference to be drawn from the evidence was that defendants participated in the Sunday game "in consequence of said contract," to-wit, their contract as baseball players and umpires and that they would not have consented to play but for their contract.

Held: That there was no error in this instruction.

Error to a judgment of the Circuit Court of Norfolk county.

The opinion states the case.

T. E. Gilman, Jno. W. Harper, and Venable, Miller, Pilcher and Parsons, for the plaintiffs in error.

John R. Saunders, Attorney General, and Leon M. Bazile and Lewis H. Marchen, Assistant Attorneys General, for the Commonwealth.

WEST, J., delivered the opinion of the court.

The plaintiff in error, T. A. Crook, and nineteen other citizens, who will be hereafter referred to as defendants, were convicted of a violation of the Sunday law (Code of Virginia, section 4570), and sentenced to pay a fine of $5.00 each and costs. They were first convicted by a justice of the peace under a warrant issued by him. Upon an appeal to the circuit court, the jury found them guilty and fixed their punishment at a fine of $5.00 each, upon which the judgment under review was entered.

The defendants, T. A. Crook and Edward Brandon, were professional umpires of baseball games for the Virginia League. The remaining eighteen defendants were professional baseball players of the Richmond and Portsmouth (Va.) Baseball Clubs, which belong to the Virginia League. Each of the umpires and each of the players was under a contract with the Virginia League, to umpire and play, respectively, for the playing season, from April 16, 1925, to September 12, 1925. For their services, each received an agreed monthly salary. There was nothing in the contract which required them to play on Sunday; nor did the league's regular schedule of games in Virginia provide for any game on Sunday. The regulations which are made a part of the contract contain the following provisions: "The player shall not without the consent of his club engage during the term of this contract or any renewal thereof in any game or exhibition of baseball, except for the club or for an assignee of this contract." The contract further provides for the imposition of fines for the violation of any regulation by the player, which may be deducted from his salary.

On Sunday, May 17, 1925, at the request of Frank D. Lawrence, president of the corporation operating the Portsmouth Club, the defendants engaged in a game of baseball on the field of the Portsmouth Club, in Norfolk county. No admission fee was charged and 5,000 people were present to see the game. From 300 to 700 people usually attend the game when played on a week day.

At the expiration of their contracts with the league, the defendants follow the trades or callings from which they came to the league, until the time comes to renew their contracts.

At the ending of the first inning the officers stopped the game and arrested the players and the umpires, who were tried, convicted and sentenced, as above stated.

Section 4570, so far as involved here, reads as follows: "If a person on a Sunday be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except in household or other work of necessity or charity, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than five dollars for each offense."

This section of the Code was considered by the court in the recent cases of Lakeside Inn Corp. Commonwealth, 134 Va. 669, 114 S.E. 769, and Perkey Brothers Commonwealth, 134 Va. 713, 114 S.E. 764, 299 L.R. 1290. In the latter case, the very able and illuminating opinion by Judge Burks expresses fully our views on the questions of Sunday observance, religious liberty, a Christian state, the constitutionality and the construction of the statute as applied to the facts in that case. At page 722 (114 S.E. 766), he says "While the provision of the statute, therefore, cannot be enforced as a religious observance, the great moral force that is back of it will make itself felt in its enforcement in conformity with the views of that force." Referring more specifically to a proper construction of the statute, at page 726 (114 S.E. 768), he speaks thus:

"* * * The statute should have a reasonable construction so as to promote the end for which it was enacted, and thus cover every class of labor at every trade, calling or other business not excepted by the statute. The statute should also be construed in the light of the age in which we live, recognizing the fact that there are things which the community regard as necessary that were not necessities when the statute was first enacted; that to escape the penalty pronounced by the statute, the labor performed must be of the class excepted by the statute, or recognized by the community as a necessity, and that what is or is not a necessity is generally a question of fact for the jury and not one of law for the court. There are cases where the question is one of law for the court. Where the act done is plainly a violation of the statute, as where a contractor, without emergency, is running a steam shovel on Sunday, or the act is plainly one of necessity, as where the owner lifts his ox out of the ditch; in either case, the question is one of law for the court. But if the act be one about which fair-minded men might reasonably differ as to whether or not it is a work of necessity, then it is a question of fact for the jury. * * *"

At page 725 (114 S.E. 767), he uses this language: "Its aim...