Sportatorium, Inc. v. State , 1937 Tex. App. LEXIS 906 ( 1937 )

The powers of government are intended to act upon the civil conduct of the citizens; and, whenever their conduct becomes such as to offend against morals or public decency, it becomes within the range of legislative authority. The policy of the law is not a matter of judicial consideration.

The Penal Code provides that the design of enacting it "is to define in plain language every offense" (Penal Code 1925, art. 1; Wimberly v. State, 98 Tex. Crim. 152, 265 S.W. 155); that no person shall be punished for an offense, if the law is so indefinitely framed or of such doubtful consideration that it cannot be understood. The Constitution also guarantees to every citizen the right to know the nature and character of the accusation against him. Const. art. 1, § 10.

In Anderson v. State, 113 Tex. Crim. 450, 21 S.W.2d 499, in construing a penal code (Vernon's Ann. P.C. art. 454c), denouncing a disturbance by one disguised "in such manner as to render his identity difficult to determine," the Court of Criminal Appeals held that such act was in violation of Const. art. 1, § 10, as failing to definitely and clearly describe the offense, there being no rule fixed when the wearing of disguise would be within the provisions of the act.

In the case of Cinadr v. State, 108 Tex. Crim. 147, 300 S.W. 64, the defendant was charged under article 1374, Penal Code 1925, which declared that whoever "needlessly * * * kills any animal" was guilty of an offense. The Court of Criminal Appeals held that the term "needlessly killing an animal" was indefinite to a degree that it fails to meet the constitutional and statute provisions that one charged with an offense be informed of its nature.

In Ex Parte Slaughter, 92 Tex. Crim. 212, 243 S.W. 478, 26 A.L.R. 891, the court had under consideration article 820o, Vernon's Ann.Pen. Code Supp. 1918, forbidding any person to operate or drive a motor vehicle on any public highway "where the territory contiguous thereto is closely built up, at a greater rate of speed than eighteen miles per hour." The court said: "The issue in the case before us resolves itself into whether one operating a car upon a public highway may with reasonable certainty know that the rate of speed at which he is moving at a given point on such highway is such as is forbidden by this law. If he can know this, the law should be upheld. If he cannot, then the law should not stand on the statutes, nor should any law whose language or effect is such that the citizen affected thereby cannot reasonably know when he is violating or about to violate same."

In Missouri, K. T. Ry. Co. v. State, 100 Tex. 420, 100 S.W. 766, 767, Judge Brown, speaking for our Supreme Court, said: "A penal statute, such as now before us, must be couched in such explicit terms that the party upon whom it is to operate may with reasonable certainty ascertain what the statute requires to be done, and when it must be done; otherwise, there would be no opportunity for a person charged with the duty to protect himself by the performance of it according to the law."

In my opinion, the Penal Code here under consideration, prohibiting and punishing an accused from conducting any "personal, physical or mental endurance contest," if, indeed, such is the import of the law, as held by the majority opinion in this case, is so indefinite and uncertain as to be obnoxious to the Constitution and the statute of the State. There is no rule fixed when the contestants shall know when they are within or without the law, if the construction of the statute is given to it, as in the majority opinion. However, approaching the question in the view that the act is constitutional, which all courts should resolve any fair doubt in favor of the constitutionality of all laws enacted by the legislative branch of our government, undoubtedly the State has wholly failed to show that appellants have violated the Penal Code.

The Legislature, in enacting the law under which this action is grounded, did not attempt to prohibit "personal, physical or mental endurance contest." The act was designed to regulate the conduct of such performances. Regulation is not prohibition. The caption of the act shows: "An Act to regulate the conducting in public competition for prizes, awards, or admission fees, any personal, physical or mental endurance contest; regulating the manner in which contestants may participate in such contest; prescribing the penalties for violation of this Act." S.B. 38, chapter 62, 2d Called Sess., 43d Leg., p. 131 (Vernon's Ann.P.C. art. 614b). The law obviously follows the caption:

"Section 1. It shall hereafter be unlawful for any person to conduct in public competition for prizes, awards or admission fees, any personal, physical or mental endurance contest that continues longer than twenty-four (24) hours.

"Sec. 2. It shall hereafter be unlawful for any person to conduct, within any period of one hundred sixty-eight (168) hours, in public competition for prizes, awards, or admission fees, more than one (1) such personal, physical or mental endurance contest at the same place or location, and in which any of the same contestants engage."

The expressed regulatory acts, and only those brought by the facts within such definition, are amenable, and the violation of every element is essential to a conviction of the accused: (1) there must be a "personal, physical or mental endurance contest"; (2) that such personal, physical or mental endurance contest shall be "continuous for twenty-four (24) hours"; (3) that such personal, physical or mental endurance contest shall be "in public"; (4) that such personal, physical or mental endurance contest shall be in "competition for prizes, awards or admission fees"; and, (5) that only one of such personal, physical or mental endurance contests, carrying all of the elements above stated, shall be conducted within any period of 168 hours. The failure of the State to prove any one of these essential elements is fatal to a conviction.

It might well be said that the evidence related in the majority opinion shows that appellants were guilty of conducting a personal, physical or mental endurance contest in a public place, and that appellants conducted more than one endurance contest within a period of 168 hours; but, under the plain language of the statute, such acts alone are not amenable. Such contests are not prohibited by law. To come within the purview of the statute, it is essential to show, in addition to the above elements, that the contestants were engaged in "competition for prizes, awards or admission fees," and that such competitive contest was "continuous for twenty-four (24) hours," and that more than one such competing and continuous endurance contest were had in 168 hours. "Competition" means: "Act of seeking or endeavoring to gain what another is endeavoring to gain at the same time; common strife for the same object." Webster. "Continuous" means: "Having contiguity of parts; without break, cessation, or interruption, unbroken; continued." Webster. There is not a scintilla of testimony in the record showing that the contestants engaged in the show were seeking or endeavoring to gain any prize, award, or admission fee; but, on the contrary, the evidence shows, and stated in the majority opinion, that: "The performers received no salary or compensation in any form from the management, other than their lodging and meals served in the building"; and, "certain business concerns in the City of Dallas become their sponsors for advertising purposes, from which the performers made some money; they also sold pictures in the arena, and those entertaining the crowds with music and dancing received free-will offerings pitched upon the platform." I fail to see how remuneration paid to the contestants in the manner outlined can be held to be competitive gain, or that two or more such contests within 168 hours offends against the statute.

Furthermore, there is no evidence showing or tending to show that the contestants engaged in the "walkathon" show, walked and/or danced continuously — "without break, cessation or interruption; unbroken; continued" (Webster, supra) — for 24 hours; but, on the contrary, the undisputed evidence shows that out of every hour during the day the contestants discontinued their walk and dance, and were at liberty to do as they pleased for 15 minutes, and one period in every 24 hours they rested and slept for 2 hours. I fail to see how a walking contest, a "walkathon," can be deemed a continuous walk, when the contestants rested and slept for more than 5 hours out of every 24 hours of the day. Rest and sleep are antitheses to walk and dance, thus breaking the continuity of the "walkathon," and clearly within the purview of the law.

The majority gives considerable credence, as evidence of appellants' guilt, to an alluring speech of some radio announcer, an employee of appellants, and the credulously written advertisements employed by appellants to attract the public to its show. I think courts should give, as evidence of guilt, but little weight, if any, to such showmen's talk. Theaters, shows, and circuses frequently advertise to deceive, rather than give truthful information, exhibitions of showmanship. It is within the memory of the writer, that circuses advertised, exhibited circulars, and displayed posters depicting many unreasonable and unnatural things, defying the laws of gravitation and of nature, given in "rose-tinted hue," to attract the credulous public, which were never intended to happen; of course, never did happen. Such advertisements are merely showmen's talk, and without evidence that the things they claim would happen did actually happen, the talk is no evidence of guilt. It is well settled in this State, that an admission or confession of the accused himself will not establish the corpus delicti, that is, the body of the offense.

The State further relies for a conviction of appellants for maintaining a common nuisance under article 4664, R.C.S., on the fact that intoxicating liquor was drunk on the premises, and the majority opinion holds that the evidence is sufficient to warrant the accusation. Article 4664, provides: "Any * * * place * * * to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor * * * is hereby declared to be a common nuisance." This act was passed in 1923, when it was unlawful to sell or possess intoxicating liquor, and before the repeal of the constitutional amendment relating to intoxicating liquors, and before intoxicating liquors were authorized to be sold and possessed in Dallas county, Tex., by vote of the people. It is no longer an offense to drink one's own liquor in public places in Texas.

There is not a line of testimony in this case, showing that intoxicating liquor was drunk on the premises, or that two or more persons assembled to any room for the purpose of drinking intoxicating liquor. The evidence reveals that 2,000 or 2,500 people assembled at the theater, for the purpose of witnessing a floor show, consisting of music, singing, and dancing, and a "walkathon." No one assembled there "for the purpose" of drinking intoxicating liquors. The mere fact that two or three persons may have been seen drinking something, a beverage of some kind, from a bottle, and that bottles of some character, whisky, beer, or soft drink, were found about the premises, fall short, I think, of proving that two or more persons resorted there "for the purpose" of drinking intoxicating liquor, or that intoxicating liquor was drunk. Courts should not deprive a citizen of the right of use and enjoyment of his property in such manner as he may wish, because, forsooth, the personal conduct and habits of the citizen may be obnoxious to the idea or notion of some other person.

No act or omission is a crime, unless made so by statute, and, to warrant a conviction, the act or omission must be plainly and unmistakably shown within the definition of the statute and within both the letter and the spirit of the law, and, if there is any fair doubt that the statute has been violated, that doubt must be resolved in favor of the accused. There can be no constructive offense, and where the statute expressly limits or does not prohibit the doing of a certain act, only those brought by the facts within the statute and such definition are amenable. There is no such thing as common-law offenses in Texas; penal offenses are prescribed by statute, and, unless there is a violation of the statutory law proven in the manner required by law, the innocent presumption of the accused should prevail.

In the case of State v. Duke et al., 104 Tex. 355, 137 S.W. 654, 666,138 S.W. 385, on certified question from this court, the Supreme Court had under consideration the right of the State to enjoin defendants from maintaining a disorderly house, in that they engaged in the business of selling intoxicating liquors to members of its organization, the court said: "That statutes under which the injunction is sought in this case are penal, or, at least quasi penal, in their character, and are to be strictly construed. That, unless appellees could be prosecuted and convicted as keepers of a disorderly house under article 359 of the Penal Code, having in mind and in view the construction of this article by the Court of Criminal Appeals, and the decisions of this court, the relief sought herein by injunction ought to be denied."

I am not in accord with the majority opinion that the evidence in this case establishes a nuisance punishable by statute, or furnishes a basis for an injunction. No conviction would stand under this record. Therefore, I respectfully dissent from the majority opinion; the judgment of the lower court should be reversed and here rendered, dissolving the injunction.