Gray v. Com.
| Decision Date | 29 September 1916 |
| Citation | 171 Ky. 269,188 S.W. 354 |
| Parties | GRAY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.
J. H Gray was convicted of a violation of the Sunday law, his motion for a new trial was overruled, and he appeals. Affirmed.
Henry J. Tilford, of Louisville, for appellant.
M. M Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.
The appellant, J. H. Gray, by means of a warrant charging him with a violation of section 1321, Ky. Statutes, was brought before the police court for the city of Louisville. He was adjudged to be guilty of the offense denounced by the statute, and a fine of $50 and the costs of the prosecution imposed upon him. He appealed from the judgment of the police court to the circuit court. A trial by jury was duly waived, and the judge of the circuit court heard and determined both the facts and law of the case. A trial resulted in appellant being found guilty as charged in the warrant, and the same penalty for his offense was imposed by the circuit court as was imposed by the police court. His motion for a new trial being overruled, he has appealed to this court.
The ground relied upon in the circuit court for a new trial, and in this court for a reversal of the judgment, is that the judgment is contrary to law and the evidence. The facts of the case are as follows: The appellant was a barber, who conducted the business of a barber in his shop, which was located at 418 West Walnut street, in the city of Louisville, and the conduct of the business was his regular trade and calling, and on the 2d day of April, 1916, which was Sunday, or the Sabbath, the appellant opened his shop as usual, and there shaved and trimmed the hair of several persons, in fact, all the persons who entered the shop on that day and requested that such services be rendered them, and he also employed another barber in shaving persons and trimming their hair in his shop on the same day, and for all the services rendered the persons for whom barbering was done the appellant charged the customary sums, which they paid.
There being no dispute as to the facts, the only question for determination is whether the facts above stated constituted a violation of section 1321, Ky. Statutes, and whether the circuit court erred in construing the proven facts to be a violation of the statute and imposing the penalty for its violation. The statute is as follows:
The appellant does not contend that he was not engaged in working at his own trade or calling, or that he did not have other persons employed in the work of barbering for profit on the Sabbath; neither does he contend that barbering is not a work or business; but his sole contention is that the business of shaving persons and trimming their hair and performing the other services usually rendered by a barber for his patrons is a work of necessity, within the meaning of the statute, and that the performance of such work is within the exception in the statute and therefore lawful. It will be observed that the law-making department of the government has not declared any works or business to be works of necessity, except the ordinary household offices, or work required in the maintenance or operation of a ferry, skiff, or steamboat, or steam or street railroads. As to what other works or business are works of necessity, and when any particular work or business is a work of necessity, and lie within the exception in the statute, is left to be determined by the courts upon the facts and under the circumstances of each particular instance.
It is apparent that the changing conditions of civilization, the improvements in the methods of transportation to meet the demands of increasing commercial relations, the demand of social relations, which did not formerly exist, have made works which were once not regarded by the common sense of the country as works of necessity to be regarded and held by that same common sense as works of necessity. It is also apparent that ordinary avocations, which are not ordiarily works of necessity, may by the exigencies of occasions become works of necessity. The harvesting of a tobacco crop is not commonly or ordinarily a work of necessity, but if the chill of the atmosphere portends a destructive frost upon the night following the Sabbath day, the common sense of the country declares the immediate cutting of the crop to be a work of necessity. Exigencies may arise in almost every trade or calling, which is not ordinarily a work of necessity, which will make upon the occasion the work of the trade or calling a necessity. A new condition may arise in the manner of doing business, and may become the ordinary way of doing business, and thus make work, which therefore was not a work of necessity, become one. Hence no hard and fast rule can be adopted which should be applied to all works and at all times and under all circumstances for determining what are works of necessity within the meaning of the statute.
All the states have statute laws which make it unlawful to do the work of one's calling, or the trade of another, upon the Sabbath day; but all of them make an exception of works of necessity and charity. Under these statutes many adjudications have been made by the courts touching what are works of necessity within the meaning of the statutes; but many of them are based upon statutes which are different in their terms to our statute, and which cause the adjudications to be valueless in determining the question of what is a work of necessity within the exception of our statute. The state of Massachusetts has a statute which declares that:
"Whoever on the Lord's day keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except works of necessity or charity, shall be punished," etc.
The Supreme Judicial Court of the state, in Com. v Dextra, 143 Mass. 28, 8 N.E. 756, while declining to decide whether it was a work of...
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