Ex Parte Lingenfelter

• Decision Date: 29 November 1911
• Citation: 142 S.W. 555
• Parties: Ex parte LINGENFELTER.
• Court: Texas Court of Criminal Appeals

142 S.W. 555

Ex parte LINGENFELTER.

Court of Criminal Appeals of Texas.

November 29, 1911.

On Motion for Rehearing, December 20, 1911.

Application by William Lingenfelter for writ of habeas corpus. Application denied.

S. E. Stratton, J. N. Gallagher, Dougherty & Gordon, Lively, Nelms & Adams, W. L. Eason, and V. L. Brooks, for relator, cited on motion for rehearing and on the question whether a moving picture show falls within the phrase "such other amusement" the following cases: 4 Words & Phrases, p. 3083; 7 Words & Phrases, p. 6599; Ex parte Roquemore (Tex. Cr. App.) 131 S. W. 1101, 32 L. R. A. (N. S.) 1186; Ex parte Muckenfuss 52 Tex. Cr. R. 467, 107 S. W. 1131; State v. Prather, 79 Kan. 513, 100 Pac. 57; State v. Penny, 42 Mont. 118, 111 Pac. 727, 31 L. R. A. (N. S.) 1155; Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219; Smythe v. State, 17 Tex. App. 244-251; Oil v. Rowley, 69 Ill. 469-472; Sutherland on Statutory Construction, § 272.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

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 employé 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 of 1895, which, as applicable to this offense, reads as follows: "Art. 199. Any proprietor of any place of public amusement, or the agent or employé 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 Fifty-Fourth 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 penal laws 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 show located near the corner of Sixth and Austin streets in the city Waco, McLennan county, Tex., 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 25 feet wide × 100 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. Near 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 persons in said pictures moving to and fro as in case of ordinary moving picture shows. There was no stage in said room, and there were 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 everyday 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, 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 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, 6.

"On second proposition: Ex parte Roquemore, 131 S. W. 1101 ; Ex parte Muckenfuss , 107 S. W. 1131; Crow v. State, 6 Tex. 334; Ex parte Hull , 110 Pac. 256 ; State v. Prather , 100 Pac. 57 ; Ex parte Neet , 57 S. W. 1025 .

"On third proposition: State v. Cody [Civ. App.] 120 S. W. 267; State v. Penny , 111 Pac. 727 ; Block v. City of Chicago , 87 N. E. 1011 ; 8 Words & Phrases, 6937, 6938.

"On fourth proposition: 8 Words & Phrases, 6937, 6938; People v. Lynch [Sup.] 108 N. Y. Supp. 209; Keith & Proctor v. Bingham [Sup.] 108 N. Y. Supp. 205; People v. Hemleb , 111 N. Y. Supp. 690; William Fox Amusement Co. v. McClellan , 114 N. Y. Supp. 594; Edwards v. McClellan [Sup.] 118 N. Y. Supp. 181.

"On fifth proposition: Ex parte Roquemore, 131 S. W. 1101 ; Crow v. State, 6 Tex. 334; Ex parte Neet , 57 S. W. 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 amusements." We are cited to the Roquemore and Muckenfuss Cases decided by this court in 131 S. W. 1101, 32 L. R. A. (N. S.) 1186, and 52 Tex. Cr. R. 467, 107 S. W. 1131. In the Roquemore Case it is held:

"It will be noted that this article undertakes to name and...