State v. Penny

• Decision Date: 20 October 1910
• Citation: 42 Mont. 118
• Parties: STATE v. PENNY.
• Court: Montana Supreme Court

42 Mont. 118

STATE

v.PENNY.

Supreme Court of Montana.

Oct. 20, 1910.

Appeal from District Court, Missoula County; F. C. Webster, Judge.

T. C. Penny was convicted for keeping open and maintaining a theater on Sunday, And he appeals. Reversed and remanded.

Marshall & Stiff and Floyd J. Logan, for appellant. Albert J. Galen, Atty. Gen., and J. A. Poore, Asst. Atty. Gen., for the State.

SMITH, J.

The defendant was convicted and fined in Missoula county for keeping open and maintaining a theater on Sunday, contrary to the provisions of section 8369 of the Revised Codes. That section reads as follows: “Every person who on Sunday, or the first day of the week, keeps open or maintains or aids in opening or maintaining any theater, playhouse, dance house, race track, gambling house, concert saloon or variety hall is guilty of a misdemeanor.”

The cause was submitted to the district court upon an agreed statement of facts, which reads as follows:

“That T. C. Penny, the defendant herein–above named, is now and at all the times hereinafter mentioned was the manager and proprietor of the Bijou in the city and county of Missoula, state of Montana; that the Bijou is a moving picture show maintained, operated, and conducted at said city and county of Missoula at 110 West Main street, and on Sunday, the 24th day of October, 1909, the defendant opened the said Bijou moving picture show and maintained the said picture show and continued to operate the same until he was arrested by the sheriff of Missoula county, Montana; that at the time of his said arrest the defendant was engaged in giving a moving picture exhibition, accompanying the same by piano music and a vocal solo; said moving picture exhibition consisted in throwing upon a screen at the front of the room, and in front of and in full view of the audience in the room, moving pictures by means of the operation of a machine which is known as a kinetoscope; that said room lust referred to is and was located in the Bijou; that the said moving pictures are thrown upon the screen by reason of the running of films of pictures through the kinetoscope; that on the aforesaid date there was by the said defendant, by and through one of his employés, run through the said kinetoscope four sets of films, throwing the pictures contained in said films on the screen hereinbefore referred to and thereby making the moving pictures, the exhibition of which is complained of by the criminal authorities of Missoula county, as constituting together with the piano music and vocal solo then and there rendered, together with the others facts herein agreed upon, the opening and maintaining of a theater on Sunday; the names of the four sets of films of moving pictures which were run and are above referred to are as follows, to wit: Samson and Goliath, which depicted on the screen what is known as a sacred scene; A New Life, which pictured what is known as a moral scene; Fools of Fate, which pictured what is known as a moral scene; and It's an Ill Wind that Blows Nobody Some Good, which pictured on the screen a comical scene.

“That throughout at least a portion of the time that the said moving pictures were being exhibited as aforesaid, one of the employés of the defendant played the piano and furnished instrumental music to accompany the exhibition of the said pictures; that at one period intervening between the exhibition of two of the above–named films of pictures one of the employés of defendant sang a vocal solo, accompanied by music on the piano, being played by another of the employés of the said defendant, which said solo was entitled ‘The Songs my Mother Used to Sing.’

“That tickets were sold admitting people to the Bijou on said Sunday evening and at the time of defendant's arrest there were at least 100 people congregated and seated inside the Bijou watching the said pictures and listening to the said music; that the price of admission charged was the sum of 10 cents.

“That the pictures shown at said time and place were all of a clean and moral character; that all of the pictures shown by the Bijou are and were prior to being exhibited passed upon by what is known and called a ‘Bureau of Censorship,’ composed of five persons located in New York City; that said bureau passes on each picture in each film run by the Bijou before the said film is permitted to be run; and any unclean or immoral picture the said bureau requires to be removed from said film at once and before it is permitted to be run.

“That the defendant is being prosecuted under the provisions of section 8369 of the Revised Codes of 1907 of the state of Montana; that at the time of the enactment of said section moving pictures and moving picture machines were not in existence and were not known of; that there was an exhibition in front of the Bijou for a period of about two hours about noon of the 24th of October, 1909, and there has been exhibited thereat on four or five other occasions prior thereto for a short period, an advertising board about three feet high and about four feet wide, having, by means of canvas and painting on said canvas, printed thereon the letters and words ‘Bijou Theater,’ and some other advertising matter.

“That the defendant pays to the city of Missoula, Mont., money for a license granted by said city under an ordinance of said city requiring licenses to be secured for the operation of theaters; that said city of Missoula has and had no ordinance requiring or providing for licenses to be granted to moving picture shows, and that there was no ordinance on the Ordinance Books of the city of Missoula on the 24th day of October, 1909, permitting or authorizing any person to secure a license for the operation of a moving picture exhibition or moving picture show.

“That the defendant on one occasion permitted an advertisement to be run and placed with his consent on an oilcloth banner about eight inches wide by eighteen inches long, the heading for which said banner was ‘Missoula's Leading Business Men’; the advertisement of defendant, which appeared among many others, was in part as follows, to wit: ‘Come to the Bijou Theater and see the best entertainment in the city.’ Charles Harnois is the proprietor of the Harnois Theater, sometimes called the Harnois Opera House. In an edition of the Daily Missoulian, a daily newspaper published in the city and county of Missoula, of about September 12, 1909, said Charles Harnois advertised that he was the proprietor of and had the only theater in Missoula. Said Harnois has been in the theater business for more than fifteen years.

“That the Bijou is by some regarded and spoken of as ‘the ten–cent show,’ and as the ‘Bijou’; that among some it is regarded and spoken of as ‘the ten–cent theater’ and as the ‘Bijou Theater’; that in the building which is occupied by the Bijou, referring particularly to the room where the exhibition is made, there are a number of seats and there are two aisles; the floor has a moderate descent as it nears the front portion of the room where the screen is, so that those in the rear can observe the exhibition as well as those in front without inconvenience; that there is an elevation in the floor of from 2 to 2 1/2 feet forming a platform where the screen is; that the curtain which forms the screen on which the pictures are thrown reaches from the ceiling to the floor of the platform and is immovable; there are no boxes; there is no...