Zucarro v. State

• Decision Date: 28 February 1917
• Docket Number: (No. 4344.)
• Citation: 197 S.W. 982
• Parties: ZUCARRO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 982

197 S.W. 982

ZUCARRO v. STATE.

(No. 4344.)

Court of Criminal Appeals of Texas.

February 28, 1917.

Rehearing Denied April 18, 1917.

Dissenting Opinion October 22, 1917.

Appeal from Tarrant County Court; Jesse M. Brown, Judge.

A. Zucarro was convicted of crime, and he appeals. Affirmed.

Baskin, Dodge, Baskin & Eastus, of Ft. Worth, and Chas. L. Black, of Austin, for appellant. Marshall Spoonts, Co. Atty., Turner, Cummings & Doyle, and D. W. Odell, all of Ft. Worth, Thomas, Milam & Touchstone, of Dallas, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was prosecuted by information and convicted of violating article 302 of the Penal Code, which is as follows:

"Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the agent or employé of any such person, who shall sell, barter, or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term, place of public amusement, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives and places of like character, with or without fees for admission."

The information contains the following:

"That A. Zucarro. * * * the proprietor of what is commonly known as a picture show, * * * did * * * unlawfully and willfully open and permit said place of public amusement to be open for public amusement, and did then and there on said Sunday permit a performance to be given and exhibited in said place of public amusement, to wit, a display of motion pictures, for public amusement, and for admission to which a fee was then and there charged."

The case was tried before a jury, and the proof shows that on Sunday, the 9th of July, 1916, the appellant was proprietor of the Queen moving picture show in Ft. Worth, Tarrant county; that the picture show was open, and that he was giving an exhibition of moving pictures, charging a fee therefor; that the pictures were projected on a screen by means of a moving picture machine and electricity throwing a magnifying light through the film which reflects on the screen something like a magic lantern—purely a mechanical device. There was no orchestra, no stage, no curtain or scenery. It was purely a first-class moving picture show. The question is raised by exception to the information and by motion for a new trial that the facts charged and proved do not constitute an offense under the article mentioned. Substantially the same question was before this court on an application for a writ of habeas corpus in the case of Ex parte Lingenfelter, 64 Tex. Cr. R. 31, 142 S. W. 555, Ann. Cas. 1914C, 765.

The leading questions involved are: (1) What is the legal effect and meaning of the following words in the statute, viz.: "The term, place of public amusement, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged;" and (2) whether or not the moving picture shows, exhibited and for which an admission fee is charged, are included in the language quoted.

That in the construction of statutes of this kind, the general words, such as "such other amusements," will not be rejected as too general, nor interpreted to include all kinds of amusements, is well settled by authority. From the thirty-sixth volume of Cyc. p. 1119, we quote the following:

"By the rule of construction known as `ejusdem generis' where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated." "The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus." "The words `others' or `any other' following an enumeration of particular classes are therefore to be read as `other such like' and to include only others of like kind or character."

Many decisions are cited under the text supporting the rule. Cyc. vol. 36, p. 1120. This rule appears to be accepted by all courts, and has been specifically adhered to by this court, notably in the case of Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131, wherein Judge Ramsey, writing the opinion, uses the following language:

"It is a familiar rule that, where general words follow particular and specific words, the former must be confined to things of the same kind. It has been held also that this rule is especially applicable in the interpretation of statutes defining crimes and regulating their punishment [citing cases]. The doctrine itself is thus well expressed in Lewis' Sutherland Statutory Construction: * * * `It is a principle of statutory construction everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear, if standing alone, but as related to the words of more definite and particular meaning with which they are associated.' The rule is supported by numerous cases."

These are cited in the opinion.

This court, in the case of Ex parte Roquemore, 60 Tex. Cr. R. 282, 131 S. W. 1101, 32 L. R. A. (N. S.) 1186, discussed the particular statute which is involved in this prosecution, and held that it did not make it unlawful for the proprietor of a baseball park to permit a game to be played therein on Sunday, or to cause a game to be played on Sunday therein, and to charge an admission fee therefor; the distinction made by the court in that case being that baseball, an outdoor game, was not like or similar to the amusements named in the statute. The court said:

"What are we to understand by the general term `and such other amusements as are exhibited and for which an admission fee is charged'? Clearly, we think amusements of a like or similar character. This seems to have been the construction given to a similar statute by many courts."

By this decision the terms, "such other amusements as are exhibited and for which an admission fee is charged," are interpreted to mean such other public amusements of a like or similar character, as circuses, theaters, and variety theaters, as are exhibited and for which an admission fee is charged; and the majority opinion of this court in the case of Ex parte Lingenfelter held that a moving picture show might be of a like or similar character of amusement, as a theater, and that whether or not it was such character of amusement depended upon the facts of the particular case. Further illustrating the views of the courts of this state with reference to the construction of general words in a statute, we call attention to the case of Thompson v. State, 17 Tex. App. 253, where a statute was upheld which prohibited the sale of the Illustrated Police Gazette and other illustrated publications of like character. In the case of Randolph v. State, 9 Tex. 521, the point is explained in the syllabus as follows:

"The rule which requires criminal statutes to be construed strictly applies to those only of a highly penal character; not to mere misdemeanors. Statutes should not, in any cases, be so strictly construed as to defeat the obvious intention of the Legislature. The words of the statute against gaming, `or any other banking, game,' etc., must have their intended effect; and consequently an indictment will lie for betting at any banking game, naming it, although it be not enumerated in the statute."

Appellant insists that inasmuch as the act was passed before moving pictures came into vogue, they could not be held to have been within the legislative intent. In a similar question before this court in the case of Christopher v. State, 41 Tex. Cr. R. 235, 53 S. W. 852, he was charged with "keeping and exhibiting a bank or gaming device for the purpose of gaming." The statute under which he was prosecuted (article 382 of the Penal Code) enumerated a number of gaming devices, but did not enumerate a "slot machine," and the proof showed that the device he kept was a slot machine; one of the assignments being as follows:

"The evidence fails to show that the `device' in question was such as either expressly or by implication is embraced within the inhibition of the law. It was not capable of being either `kept,' `dealt' or `exhibited' for the purpose of gaming, being an automatic machine requiring neither keeper, dealer nor exhibitor; [and] was not in contemplation of the Legislature, because it had not been invented or conceived when the law was enacted."

Article 383 at that time contained a provision as follows:

"It being intended by the foregoing article to include every species of gaming device known by the name of table or bank of every kind whatever, this provision shall be construed to include any and all games which in common language are said to be played, dealt, kept or exhibited, * * * but the enumeration of these games specially shall not exclude any other properly within the meaning of the two preceding articles."

The court says:

"Our statutes on this subject were evidently framed not only to cover every gambling device then known, but all others that might be invented or become known."

The conviction was sustained. This case was approved in the cases of Dalton v. State, 74 S. W. 28, and ...