Hennersdorf v. State

• Decision Date: 23 June 1888
• Citation: 8 S.W. 926
• Parties: HENNERSDORF v. STATE.
• Court: Texas Court of Appeals

8 S.W. 926

HENNERSDORF v. STATE.

Court of Appeals of Texas.

June 23, 1888.

Appeal from Brown county court; R. P. O'CONNOR, Judge.

Indictment against H. Hennersdorf for laboring on Sunday. Judgment of conviction, and fine of $10 assessed, from which defendant appealed. Articles 183, 184, Pen. Code Tex., prohibit laboring on Sunday, with the exception of works of necessity and charity.

Bell & Drane, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.

HURT, J.

Appellant was convicted in the county court for laboring on Sunday. Pen. Code, art. 183. Works of necessity are excepted from the operation of this article; and the only question for decision is, does the evidence in this record bring this case within this exception? We must look to the facts, which are these: The Brownwood ice factory was operated on Sunday, as alleged. The defendant had the management and control of said factory, and was present superintending and directing its operation on Sunday. If said factory was closed from Saturday night at 12 o'clock until Sunday night at 12 o'clock, it would require from 24 to 30 hours to reduce the temperature so that ice could be drawn. The first ice drawn from the moulds would be spongy, unsaleable ice. The machinery is very sensitive to the heat of the sun, and during the summer the temperature in the brine-vats would rise from 16 to 20 deg. in a day, and it requires more labor and time to recover a degree above 10 deg. than below. Do these facts present a case of necessity? What is meant by works of necessity? Under very similar statutes to the one under which this prosecution is had, we find this definition: By the word "necessity" we are not to understand a physical and absolute necessity; but a moral fitness or propriety of the work and labor done, under the circumstances of any particular case, may be deemed "necessity," within the statute. Flagg v. Millbury, 4 Cush. 243; Com. v. Knox, 6 Mass. 76; Pearce v. Atwood, 13 Mass. 354. "Nor will it do to limit the word `necessity' to those cases of danger to life, health, or property which are beyond human foresight or control. On the contrary, the necessity may grow out of, or indeed be incident to, a particular trade or calling, and yet be a case of necessity within the meaning of the act; for it is no part of the design of the act to destroy or impose onerous restrictions upon any lawful trade or business, and hence, under a similar statute, it has been held, in a sister state,...