State v. Morris

• Citation: 155 P. 296,28 Idaho 599
• Parties: STATE, Appellant, v. H. D. MORRIS, Respondent
• Decision Date: 23 February 1916
• Court: Idaho Supreme Court

155 P. 296

28 Idaho 599

STATE, Appellant, v. H. D. MORRIS, Respondent

Supreme Court of Idaho

February 23, 1916

MOVING PICTURE SHOW-CONSTITUTIONAL LAW-RELIGIOUS LIBERTY-STATUTORY INTERPRETATION.

1. The phrase "moving picture show" as used in sec. 6825 Rev. Codes, as amended by chap. 99, Sess. Laws 1911, p. 342 means a place where motion pictures are exhibited for the purpose of public amusement and entertainment.

2. When words have no technical meaning or application, or when they have not been used or employed in a technical sense in the statute, they should be given their ordinary significance as popularly understood.

3. The constitution of Idaho guarantees to each inhabitant of the state the inalienable right to decide for himself as to the wisdom and righteousness of his mode of worship.

4. To hold that the use of a moving picture machine on Sunday for the purpose of illustrating a sermon, or religious lecture is keeping open or operating a moving picture show in violation of the statute, would be to improperly invoke the police power of the state, for, thus construed and in that particular, it would bear no real or substantial relation to the public health, the public morals, the public peace or the public safety. Such a construction would bring the statute into conflict with sec. 4, art. 1, and sec. 19, art. 21, of the constitution, guaranteeing religious liberty to the inhabitants of Idaho.

5. When a statute is susceptible of two interpretations, one making it constitutional and the other unconstitutional, the former must be adopted.

[As to religious belief as affecting qualifications of person as guardian, see note in Ann.Cas. 1915C, 361]

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Chas. P. McCarthy, Judge.

Respondent was convicted in the justice's court of keeping open and operating a moving picture show on Sunday. He appealed to the district court and was acquitted. The state appeals. Affirmed.

Affirmed.

R. L. Givens and E. P. Barnes, for Appellant.

The overt violation of a Sunday rest law or the act itself being once established, the intent is immaterial. (Sec. 1698, Wharton's Criminal Law.)

"Various industrial exhibitions and entertainments for charitable purposes are all of them shows." (United States v. Buffalo Park, 16 Blatchf. 189, 24 F. Cas. 1299; Economopoulos v. Bingham, 109 N.Y.S. 728; Lempke v. State (Tex. Cr.), 171 S.W. 217.)

The courts have repeatedly recognized the fact that the state has the inherent right to regulate the course of conduct on the part of the citizens of the state, and where they transgress the statute law, such acts will be prohibited even though they are sought to be performed under the guise of religious liberty; there is no reason why a distinction should be made against certain performances sought to be engaged in by a certain sect and the rule not universally applied. Such a course of conduct would certainly be unfair, illegal and discriminatory. (Commonwealth v. Herr, 39 Pa. S.Ct. 454, 229 Pa. 132, 78 A. 68; Matter of Frazee, 63 Mich. 396, 6 Am. St. 310, 30 N.W. 72; State v. Weiss, 97 Minn. 125, 105 N.W. 1127, 7 Ann. Cas. 932; State v. Barnes, 22 N.D. 18, Ann. Cas. 1913E, 930, 132 N.W. 215, 37 L. R. A., N. S., 114; State v. Neitzel, 69 Wash. 567, Ann. Cas. 1914A, 899, 125 P. 939, 43 L. R. A., N. S., 203.)

The charging or failing to charge an admission is immaterial. In our statute the act prohibited is the keeping open or the opening of a moving picture show on Sunday. Under our statute, where the main feature is the moving picture part, the religious aspect is not a matter of legitimate consideration as a defense. This is the main import of the statute, with the expediency of which the court has nothing to do. (Wright v. Kelley, 4 Idaho 624, 43 P. 565; Blaine Co. v. Heard, 5 Idaho 6, 45 P. 890; State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259; In re Jacobs, 13 Idaho 720, 92 P. 1003.)

"Penal laws are to be construed strictly; but they are not to be construed so strictly as to defeat the obvious intention of the legislature." (Sutherland on Statutory Construction, p. 963, note 18; Adams v. Lamsdon, 18 Idaho 492, 110 P. 280.)

Wyman & Wyman, for Respondent.

Penal statutes should be strictly construed. (Ex parte Bailey, 39 Fla. 734, 23 So. 552; State v. Woodruff, 68 N.J.L. 89, 52 A. 294.)

Sunday statutes are criminal in their nature, and must be strictly construed. (Commonwealth v. Alexander, 185 Mass. 551, 70 N.E. 1017; Lewis, Sutherland Statutory Construction, 2d ed., 520.)

That words used in a statute should be construed in accordance with their ordinary usage, see Adams v. Lansdon, 18 Idaho 483, 110 P. 280; In re Hull, 18 Idaho 475, 110 P. 256, 30 L. R. A., N. S., 465; In re Bossner, 18 Idaho 519, 110 P. 502,

"Where moving pictures are given as an incident to and for the purpose of illustrating a lecture, which in itself is permissible, their showing does not fall within the intention of the statute." (People v. Finn, 57 Misc. 659, 110 N.Y.S. 22.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

On August 11, 1914, the above-named respondent, together with two other persons, was arrested upon a warrant issued out of the justice's court of Boise precinct upon a charge of keeping open and operating a moving picture show on Sunday in the city of Boise, Idaho. The record does not disclose what disposition, if any, was made of the cases of the other defendants but it appears that on November 30th, 1914, the respondent, upon an agreed statement of the facts, was, by the justice of the peace, adjudged to be guilty of the crime charged against him. He appealed to the district court, where the case was submitted to the judge without a jury, upon the agreed facts, and where he was adjudged to be not guilty. The case is brought here by the state upon appeal from the judgment last mentioned.

It appears that respondent is a resident and citizen of the city of Boise, where he is engaged in the practice of his profession, that of an osteopathic physician, and that he devotes a portion of his time and means to religious work, and is an active member of the local class of the International Bible Students' Association, which is a branch, or subsidiary organization, of the Watch Tower Bible and Tract Society, a religious corporation, It is agreed: "That among other means employed by the aforesaid society and association, or religious organization, in preaching the gospel, teaching the Bible and giving Bible lectures, is that known as the Photo Drama of Creation, which consists of a series of Bible lectures, together with pictures and photographic illustrations thereof; that the same is shown in four parts, each part requiring two hours to hear and see the same; it takes up the Divine plan, as set forth in the Bible, from the beginning of earth's creation and follows the development thereof in orderly manner down to the present date; that the arrangement thereof is as follows: Approximately 100 Bible lectures, or sermons, were carefully prepared and then dictated, or spoken, into a phonograph and records, or discs, thereof made, and afterward said lectures, or sermons, were and are reproduced by the phonograph; that for the purpose of illustrating these Bible lectures, or sermons, and to enable the mind to more readily grasp the lessons taught thereby, paintings and photographs and photographic scenes of such Bible subjects are reproduced upon a screen by means of a stereopticon and cineomatograph, or moving picture machine, which pictures, photographs and photographic scenes, relate to and illustrate the subject matter of the lecture or sermon."

It is further agreed that, prior to the 9th day of August 1914, the respondent, together with other citizens and residents of Boise who were members of the local class of the International Bible Students' Association and interested in teaching the Bible and preaching the gospel to others, procured a building in that city known as the "Majestic Theatre," for the purpose of producing therein the Photo Drama of Creation; that the rent for the building was paid by the members of the local class of the association, to which respondent contributed, and that all other expenses in connection therewith were paid by the society, or association, or by the members thereof, in order that the citizens of Boise might have the opportunity of hearing such lectures or sermons and of seeing the illustrations thereof.

The agreed statement of facts further recites as follows:

"That on Sunday, the 9th day of August, 1914, the said Photo Drama of Creation was begun or opened at the building aforesaid and part 1 thereof was given; that on the same day and just preceding the opening of the Photo Drama of Creation, the local class of the International Bible Students' Association held their regular religious services in said building, namely, the one known as the 'Majestic Theater,' and the defendant was present and participated in said meeting or religious worship; that thereafter and on the same day the defendant, together with others, actively engaged in giving said part 1 of said Photo Drama of Creation in said 'Majestic Theater' building; that the defendant's services in connection therewith were rendered entirely free, without charge or remuneration; that no one having any part therein or connection therewith received a salary, but some of the helpers were paid their actual expenses, which expenses were provided by voluntary contribution as aforesaid by persons interested in the teaching of the Bible as aforesaid or by said society or association aforesaid; that all the funds of the said society or association are provided by voluntary...