Ex Parte Roquemore

• Decision Date: 09 November 1910
• Citation: 131 S.W. 1101
• Parties: Ex parte ROQUEMORE.
• Court: Texas Court of Criminal Appeals

131 S.W. 1101

Ex parte ROQUEMORE.

Court of Criminal Appeals of Texas.

November 9, 1910.

Ex parte Fred Roquemore on petition for writ of habeas corpus. Writ granted, and petitioner discharged.

King & King, for appellant. C. A. Hodges, City Atty., and John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

It is shown by the record in this case that relator was charged by complaint filed in the corporation court of the city of Nacogdoches with being the manager and proprietor of a place of public amusement, to wit, a baseball park, in the city of Nacogdoches, and that on the 10th day of July, A. D. 1910, said day being Sunday, he did then and there unlawfully and willfully open and permit said baseball park and ground to be open for public amusement, and did then and there on said Sunday, and date above alleged, permit a baseball game to be exhibited and played on said baseball park and ground for public amusement, and for the admission to which a fee was charged.

The prosecution is based upon article 199 of the Penal Code of 1895. Relator, it appears, was tried and convicted in said corporation court, and gave notice of appeal from said judgment to the county court of Nacogdoches county, but omitted or failed to perfect his appeal as by law provided. Soon thereafter application was made for writ of habeas corpus to the county judge of said county, which was presented on the 18th day of August of this year. This was refused by the county judge, and there was indorsed on the application submitted to him the following: "The foregoing petition for habeas corpus being this day presented to me, and after considering the same, I am of the opinion that the same should be refused and the matter referred to the Court of Criminal Appeals, inasmuch as there is some doubt in the mind of the county judge as to whether or not article 199 of the Penal Code includes such character of offense." Thereupon this application was presented to the presiding judge of this court, and a writ of habeas corpus was by him directed to issue, and was made returnable before us on October 5, 1910; relator, pending the appeal, being admitted to bail in the sum of $300.

We are met at the threshold of the case with the suggestion by our able Assistant Attorney General that the writ of habeas corpus cannot apply in this character of proceeding; that it is sought merely as a method of appeal or supersedeas, and under the authority of the cases of Ex parte Scwartz, 2 Tex. App. 74, Perry v. State, 41 Tex. 488, Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076, and the still later case of Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369, cannot be entertained, and that the judgment of inferior courts can only be attacked by writ of habeas corpus for such illegalities as render them void (Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546); and that the erroneous judgments of inferior courts having jurisdiction of the subject-matter and of the person cannot be successfully attacked upon habeas corpus, unless they are so far erroneous as to be absolutely void (9 Am. & Eng. Enc. of Law, 222), and that it is only when the proceeding is void that the writ of habeas corpus may be resorted to (Ex parte Slaren, 3 Tex. App 662, and Ex parte Boland, 11 Tex. App. 166).

That these general rules obtain there can be no sort of question, but, as we believe, they have no application to the case here. The sole matter in controversy in this case is as stated in the agreed statement of facts: "Whether or not the complaint hereinbefore mentioned charged an offense under the facts herein agreed upon in view of article 199 of the Penal Code of 1895 of this state, or whether the facts heretofore agreed upon make an offense denounced by article 199." So that we are confronted with the question as to whether in this state it is unlawful for one, the proprietor of a baseball park, to permit a game to be played therein on Sunday, or to cause a game to be played on Sunday therein where an admission fee is charged. If there is no such law in this state, then manifestly no offense is charged, and none could be charged upon any state of case made by this record, or that could be predicated upon any state of facts reasonably applied to the condition of relator. Counsel for relator who prosecuted the case in the corporation court, among other things, say: "It is obvious that articles 196 to 200 are based upon the commandment, `Remember the Sabbath day to keep it holy, six days shalt thou labor and do all thy work, but the seventh day is the Sabbath of the Lord thy God, in it thou shalt not do any work, thou nor thy son, nor thy daughter, thy man-servant nor thy maid-servant nor thy cattle, nor thy stranger that is within thy gates, for in six days, the Lord made heaven and earth, the sea and all that in them is and rested the seventh day, wherefore the Lord blessed the Sabbath day and hallowed it.'" Exodus 20, 9-10-11.

That it would be competent for the Legislature to prohibit a baseball game on Sunday may be true. As was said in Bloom v. Richards, 2 Ohio St. 387: "Wisdom requires that men should refrain from labor at least one day in seven, and the advantages of having the day of rest fixed, and so fixed as to happen at regularly recurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the General Assembly to require this cessation of labor and to name the day of rest. It did so by the act referred to, and, in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected." We are not therefore concerned here with the issue or question as to whether the Legislature could enact a law prohibiting baseball on Sunday, but rather with the question as to whether they have so enacted. To determine this correctly recourse must be had to article 199 of the Penal Code of 1895, on which reliance is had by the state to hold relator. This 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 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; and shall also include dances at disorderly houses, low dives and places of like character with or without fees for admission." It will be noted that this article undertakes to name and designate the place of public amusement, and it is said that it shall be so construed as to mean circuses, theaters, variety theaters, and such other amusements as are exhibited and for which an admission fee is charged, and shall also include dances at disorderly houses, low dives, and places of like character with or without fees for admission. That baseball is not specifically named, of course, is clear. What are we to understand by the general term "and such other amusements as are exhibited and for which an admission fee is charged"? Clearly we think amusements of a like or similar character. This seems to have been the construction given to a similar statute by many courts. It has been said that "baseball is not prohibited by a statute which provides for the punishment of any one convicted of horse racing, cockfighting, or playing at cards or game of any kind on Sunday." State v. Prather, 79 Kan. 513, 100 Pac. 57, 21 L. R. A. 23, 131 Am. St. Rep. 339. To the same effect, see Neet, Ex parte, 157 Mo. 527, 57 S. W. 1025, 80 Am. St. Rep. 638; St. Louis Agricultural Ass'n v. Delano, 108 Mo. 217, 18 S. W. 1101. In discussing this matter in the case of State v. Prather, supra, the court, referring to the meaning of the word "game" in the statute under consideration, said: "In the broad sense in which the word is often used it includes baseball. Giving to the language this interpretation, the statute necessarily applies to every contrivance or institution which falls within the general term. This construction would make the statute apply to every game, to authors, whist, chess, checkers, backgammon, and cribbage, even when played within the privacy of one's home, and to croquet, basket-ball, tennis, and golf, whether played in public or on private grounds. It hardly seems probable that it could have been the intention of the Legislature to enact a provision so drastic in its terms as to make the playing of all games on Sunday misdemeanors without regard to their character, and with no limitations or reservations with respect to the place where or the circumstances under which they might be indulged in. The doctrine of ejusdem generis is applied in all cases where there is doubt as to the intention of the Legislature, and, as a rule of statutory construction is stated to be that, where general words follow particular ones in a statute, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified. * * * The particular words of the statute create a class or species of games, which in the popular mind are associated with gambling. Baseball, on the other...