State v. Kelly

• Decision Date: 08 February 1930
• Docket Number: 29,298
• Parties: THE STATE OF KANSAS, Appellee, v. C. B. KELLY, Appellant
• Court: Kansas Supreme Court

284 P. 363

129 Kan. 849

THE STATE OF KANSAS, Appellee, v. C. B. KELLY, Appellant

No. 29,298

Supreme Court of Kansas

February 8, 1930

Decided January, 1930.

Appeal from Trego district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

SUNDAY--Violation of Sunday Law--Operation of Moving-picture Show. The owner of a moving-picture show who opens and operates it on Sunday violates section 21-952 of the Revised Statutes of the state of Kansas.

Herman Long, of Wakeeney, for the appellant.

William A. Smith, attorney-general, Walter T. Griffin, assistant attorney-general, and John R. Parsons, county attorney, for the appellee.

Marshall J. Harvey, J. dissenting. Jochems, J. concurs in this dissent.

OPINION

MARSHALL, J.:

The defendant appeals from a conviction under section 21-952 of the Revised Statutes, which reads--

"Every person who shall either labor himself or compel his apprentice, servant or any other person under his charge or control to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding twenty-five dollars."

The count of the information on which the defendant was convicted charged--

"That on the 14th day of April, 1929, in the county of Trego, and state of Kansas, C. B. Kelly did willfully, wrongfully and unlawfully open, superintend and manage a public picture show and the operating of a picture-projecting machine therefor and did sell tickets therefor and take money from the patrons of said show at prices varying from ten cents to fifty cents, and as such manager of said public picture show did compel his servants and employees under his charge and control at said picture show to labor and perform work, and such work performed by said C. B. Kelly and his said employees aforesaid was other than the household offices of daily necessity or other work of necessity and charity, said acts as aforesaid set out were performed on the first day of the week commonly called Sunday, contrary to the form of statutes made and provided in such cases and against the peace and dignity of the state of Kansas."

There was evidence which tended to prove that the defendant operated a moving-picture show in Wakeeney; that the defendant operated it on Sundays; that he advertised in the local newspapers that the show would be open on Sundays; that he was in and about the theater building where the show was conducted, superintending the same, on Sundays; that he operated the show on Sunday, April 14, 1929; that he paid those who worked for him in the show by the week; and that on Sundays they did the things that were necessary to operate the show. There was evidence which tended to prove that on those days those who patronized the show paid such an amount as they desired for admission thereto; that in so doing one of the employees of the defendant received the money for tickets sold; and that the money was turned over to the defendant. There was no evidence to show that the defendant performed any of the labor necessary to be done operating the show except that he superintended its operation.

The court instructed the jury as follows:

"5. If you find and believe from the evidence beyond a reasonable doubt that on Sunday, April 21, 1929, at any time between midnight when Saturday, April 20, ended and midnight when Monday, April 22, began, the defendant, C. B. Kelly, in Trego county, did willfully open, superintend and manage a public picture show and the operating of a picture-projecting machine or if he did sell tickets for such show and receive money from the patrons of such show, if any; or if as manager of said show the defendant did compel his servants and persons under his charge and control at said picture show to labor and perform work on said Sunday, April 21, 1929 aforesaid, then you should find the defendant guilty on count 1, as charged in the information. If you do not so find you should acquit the defendant on count 1.

"6. As to each and all of the other counts from count 2 to count 10, each inclusive, you are instructed exactly the same as in the preceding instructions on count 1 with the proper and respective variations as to dates . . .

"8. If the defendant did the things which are stated in these instructions to be contrary to the law, but did them through any agent or servant or person or...