Ex Parte Jacobson

• Decision Date: 03 February 1909
• Citation: 115 S.W. 1193
• Parties: Ex parte JACOBSON.
• Court: Texas Court of Criminal Appeals

115 S.W. 1193

Ex parte JACOBSON.

Court of Criminal Appeals of Texas.

February 3, 1909.

Original application for writ of habeas corpus by Eva Jacobson for her discharge from an arrest under a charge of unlawful assembly. Relator ordered discharged.

Walker & Williams, for applicant. Dwight L. Lewelling and F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Applicant was arrested charged with being guilty of an unlawful assembly. The complaint and information allege that T. P. Finnegan, Lee Muckenfuss, Sol Block, Harry Sanders, Lewis Snyder, Nathan Florer, one Somers, one Starke, one Askeland, Clemenso Bros., Eva Jacobson, one Dickinson, one Delmar, and one Darrell did then and there unlawfully assemble and meet together, with the intent and purpose to aid each other, by selling tickets, and by ushering, and by acting, and by singing, and by stage carpentering, and by scene shifting, and by dancing, and by receiving tickets, and by receiving money, and by counting money, and by acting as treasurer, and by handing out programs, and by counsel and advice to effect the illegal object, and to commit the offense, etc., being Sunday, of unlawfully and willfully opening and permitting to be open for public amusement a theater and place of public amusement, to wit, the Majestic Theater, and did then and there on said Sunday permit a theatrical performance to be given and exhibited in said theater for public amusement, and for admission. to which a fee was then and there to be charged, and of which said theater and place of public amusement the interstate Amusement Company was then and there proprietor, and T. P. Finnegan was then and there the agent and employé of said Interstate Amusement Company, and as such agent and employé did then and there intend to unlawfully and willfully open and permit to be open for public amusement said theater and place of public amusement, and to then and there on said Sunday permit a theatrical performance to be given and exhibited in said theater for public amusement, and for admission, to which a fee was then and there to be charged, and that said parties (naming them), well knowing the intent and purpose of the said ____, did then and there unlawfully assemble and meet together with the said T. P. Finnegan and each other, with the intent and purpose as aforesaid. This is the substance and almost literal reading of the complaint and information.

We are led to believe that the purpose of these pleadings was to charge applicant and the other named parties with a violation of the statute prohibiting an unlawful assembly, though the pleading has gone further, and may have intended to include the execution of such unlawful assembly, which, under the statute, would constitute a riot. If we understand fully the pleadings, it was intended to charge the parties with opening the Majestic Theater, a place of amusement, on Sunday, and with acting together in doing so, and that there was to be an admission fee charged. Evidently the theory of the prosecution is that it constituted an unlawful assembly for these parties to open said theater and entertain the crowd who would assemble at said theater on Sunday.

The statute (article 199 of the Penal Code of 1895) prohibits the owner, agent, or employé of a place of public amusement from opening said place of public amusement on Sunday, if there be a fee charged for admission. Said article is 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 employé of any such person, 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," etc. "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." A reading of this law makes it evident that the opening of places of amusement is not a violation of the law, unless an admission fee is charged. If an admission fee is not charged, though the place of amusement is opened on Sunday, under the terms of the statute there would be no violation of its provisions. It will be observed, from the contents of the pleadings under which this suit is prosecuted, that relator is charged, along with the manager, T. P. Finnegan, with an unlawful assembly to violate the Sunday law. It will be further observed that the opening of places of amusement and giving entertainments is not a violation of the law, but authorized, except when the place of amusement is opened on Sunday and an admission fee is charged.

Article 313 of the Penal Code of 1895 is as follows: "No public meeting for the purpose of exercising any political, religious or other lawful rights, no assembly for the purpose of lawful amusement or recreation, is within the meaning of this chapter." The...