Rosenbaum v. State

• Decision Date: 10 December 1917
• Docket Number: 31
• Citation: 199 S.W. 388,131 Ark. 251
• Parties: ROSENBAUM v. STATE
• Court: Arkansas Supreme Court

199 S.W. 388

ROSENBAUM v. STATE

131 Ark. 251

No. 31

Supreme Court of Arkansas

December 10, 1917

Appeal from Pulaski Circuit Court, First Division; Edward B. Downie Judge; affirmed.

Judgment affirmed.

Hal. L Norwood and Rhoton & Helm, for appellant.

It was error to direct a verdict. The evidence establishes the moral fitness and the necessity of the labor, and the issue should have been submitted to a jury. Kirby's Digest, § 2030; 61 Ark. 219-20; 85 Id. 135; 72 Id 169; 55 Id. 10.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The operation of the show was not a "necessity" within the meaning of the statute. The witnesses merely gave their opinions. 125 Ark. 159; 61 Id. 216; 20 Id 290; 55 Id. 10; 80 Conn. 582. See also 37 Cyc. 548; 144 Mass. 363; Ib. 28.

2. A verdict was properly directed. 84 Ark. 564; 88 Id. 269.

STATEMENT OF FACTS.

Section 2030 of Kirby's Digest reads as follows: "Every person who shall on the Sabbath or Sunday, be found laboring, or shall compel his apprentice or servant to labor or to perform other services than customary household duties, of daily necessity, comfort or charity, on conviction thereof, shall be fined one dollar for each separate offense."

Louis Rosenbaum was convicted of violating this statute. The proof on the part of the State consisted in an admission by the defendant that he had operated a moving picture show in the City of Argenta, Pulaski County, Arkansas, on Sunday, July, 29, 1917; that he charged for admission to the show; that he operated a moving picture show in the afternoon of that day, and worked employees in connection with his business. He testified that his show was clean and educational in character.

Several witnesses testified on behalf of the defendant. Some of these witnesses were officers of high rank and prominent in army circles at Camp Pike; others were prominent in the social and business activities of the cities of Argenta and Little Rock. One of the appellant's witnesses was D. M. Pixley, mayor of Argenta. He testified that at the time the defendant operated his moving picture show there were between four and five thousand soldiers at Fort Logan H. Roots, and taking into consideration the unusual conditions that exist over there he was of the opinion that clean moving picture shows were a necessity for the soldiers.

One of the defendant's witnesses, W. B. Smith, who was president of the Chamber of Commerce of Little Rock, and as such took a most conspicuous and commendable part in the location of the cantonment in proximity to these cities, had given the matter of camp activities and other matters connected with it considerable thought and time. His testimony fairly illustrates the character of the testimony given by each of the witnesses who testified on behalf of the appellant. He testified in part as follows:

Q. "Taking into consideration the number of soldiers camped at Fort Roots on the 29th of July--approximately 4,000 men--and conditions as they existed with that number of men camped there and the hours for getting off to come to town--state whether or not the operation of clean and wholesome picture shows on Sunday was a necessity?" A. "I think so."

He was then asked to state why, and answered: "The soldiers have their entire Sunday off, except those who are on some particular duty; their mornings are devoted, or should be devoted to religious services. The afternoon is on their hands; they are away from their homes; they are largely in strange communities; and in my mind and opinion it is to the interest of the soldiers that they should have clean and wholesome diversion for the Sunday afternoon. I am clear in my opinion that the picture shows, such as we have in Little Rock and Argenta, and Sunday baseball, one of the clean sports of the country, would be beneficial to the physical and moral life on their recreation day."

On cross-examination he stated: "I am not in favor of violating a statute law, but common practice in the community justifies the exception to the law as we have it practiced in our community on many things that are considered necessities on Sunday. Personally, I care nothing for Sunday baseball and do not favor it except under the conditions I have mentioned, and I would not advocate the violation of the statute on it. I like picture shows as well as drama. I consider them of high educational value."

He was asked if he based his opinion of the necessity of moving picture shows here on Sunday on the fact of the unusual situation of having so many soldiers in close proximity to the town, and answered: "I do not consider it a necessity under normal conditions in the city; base it entirely upon the ground as stated, that we have a large number of men here in July and now, and a large number of men detached with no home life and none of the soft and loving influence of home life that would take them there for their rest and diversion. You can not expect the men to give attention to the spiritual life the entire Sunday. Get him to devote some hours in the morning to religious and spiritual matters and you have accomplished all that is possible with the average man. I base it on the large number of men detached. If we had 8,000 or 9,000 laborers imported here I would say that the conditions were just as urgent as for the soldiers."

It was shown by Colonel James, of the 153d Infantry (formerly First Arkansas) that the soldiers underwent strenuous training, requiring the physical movements of their entire bodies. The hours of training were from half past seven in the morning until half past three in the afternoon with an hour at noon for luncheon. One-fifth of the men had permission to visit the cities of Argenta and Little Rock each night, and on Sunday they all had that permission except those who were on guard duty. Sunday was the recreation day for all the men.

It was shown that before the night of the moving picture show the defendant gave out a lot of passes; he had some three hundred passes distributed. He was not selling tickets on the night of July 29; just took the money if they offered it and let them pass in. It was further shown that there were seventy soldiers in attendance upon the picture show on the occasion mentioned. It was contemplated that there would be between 25,000 and 40,000 soldiers located at Camp Pike.

Eliminating that testimony of the witnesses which was but the expression of their opinions, the undisputed facts are that the defendant and his employees operated a moving picture show in the City of Argenta, Pulaski County, Arkansas, on Sunday, July 29, 1917; that at Fort Logan H. Roots at that time there were approximately 4,000 men who were detached from their homes and who daily were put through the strenuous exercise of body and mind that was incident to their training. There were to be stationed at Camp Pike between 25,000 and 40,000 soldiers, one-fifth of whom were permitted each night to visit the cities of Little Rock and Argenta, except on Sunday, when all were given this permission except those on special guard and other duties at the camp. Sunday was their general recreation day. There were at that time at Camp Pike about 8,000 working men, engaged in the construction of the buildings of the cantonment, who did not have an opportunity to go to moving picture shows except on Sunday.

The State objected to the opinion evidence of the witnesses on behalf of defendant, which objection the court overruled, to which the State duly excepted. The court instructed the jury to find the defendant guilty, to which the defendant excepted. The jury returned a verdict of guilty, and the court entered a judgment fixing defendant's punishment at a fine of one dollar and costs, from which judgment this appeal has been duly prosecuted.

OPINION

WOOD, J., (after stating the facts).

The court, upon the objection of the State to the opinion evidence of the witnesses, should have excluded such testimony from the jury. But the ruling of the court directing the jury to return a verdict of guilty, notwithstanding the opinion of these witnesses, was, in legal effect, tantamount to excluding such evidence. This ruling of the court was correct.

The witnesses who testified on behalf of the appellant were unanimous in the opinion that the operation of clean, wholesome and moral picture shows in the cities of Little Rock and Argenta, under the conditions above stated, was a necessity for the physical comfort and moral well being of the soldiers who were located at Fort Logan H. Roots and Camp Pike.

Considering the general intelligence and high standing of these witnesses, their opinions would be entitled to great respect and might have a cogent influence in any subject-matter of controversy where it was competent and proper to take into consideration such opinions in determining the issue involved. These opinions, and especially the arguments to sustain them, might be addressed with perfect propriety to the legislative department of the government, whose province it is to enact laws, but they certainly have no place before the courts, which have no power to legislate and whose exclusive and only province is to interpret the laws as they have been enacted by the Legislature.

(1-3) It is a familiar rule, without exception, that the opinion of a witness not founded on science or in relation to any special business, art or trade requiring peculiar knowledge but given purely as the witness' theory concerning an issue of morals or duty, is inadmissible, whether such opinion be by a professional or non-professional witness. See Rogers' Expert Testimony, p. 32, Sec. 11. It is also a well established rule of evidence that the opinion of an ordinary witness on a...