Ealey v. State , 87 Tex. Crim. 648 ( 1920 )

Appellant has filed his motion for rehearing herein, urging that it was error for the trial court to refuse a special charge asked, telling the jury that one Pois was an accomplice, and that a conviction could not be had upon his testimony alone, etc.

On the trial of the case appellant voluntarily took the stand as a witness in his own behalf, and testified that the picture show in question was open for business on the Sunday charged, and that he operated the motion picture machine therein; that in so doing he was following the instructions of his Union; that when he got to the show on that day, Pois, the owner, was not there; that he, appellant, went ahead and prepared to open the show, fixed everything, put his reels in, and then ran them during the time the show was open; that he donated his services; that he did not discuss the matter at all, nor have any understanding with Mr. Pois. Other witnesses testified, without contradiction, that the show was open for business on the Sunday in question, and that appellant was there operating the machine. The witness Pois was in fact introduced by the State, but an examination of his testimony discloses that he denied that appellant helped run the show on the day in question. He further stated that appellant donated his services; that he, Pois, did not have appellant there that day; that he just came down of his own accord; that appellant had nothing to do with selling tickets or opening the doors of the theatre, or taking in money, and that he paid appellant nothing that day; that he did not authorize him to open the doors, and that what appellant did was without any understanding. The testimony of appellant was much more favorable to the State than that of Pois.

The general holding in this State is, that where the testimony of an accomplice is not favorable to the State, it is not error to fail or refuse to charge on such testimony. Moseley v. State, 36 Tex.Crim. Rep.; Waggoner v. State, 35 Tex. Crim. 201; Matkins v. State, 33 Tex.Crim. Rep..

The record makes it clear that no contest was made in the trial court, and none is here made of the fact that the picture show was operated on the Sunday in question, and that appellant operated the machine in same. The refusal of the requested charge was not error under the facts of this case. Bailey v. State,68 Tex. Crim. 119, 150 S.W. Rep., 915; Art. 743, Vernon's C.C.P., and authorities

Appellant urges further that we did not discuss in our opinion, his motion to quash the complaint. Said motion contains four grounds: First, that the complaint was bad, because the Sunday law did not apply to moving picture shows. The complaint charged appellant with keeping open on Sunday a place of public amusement, to wit, a theatre. Such act is expressly forbidden by our statute. There is nothing in this contention. The second ground of the motion was that the complaint charged appellant as being the agent or employee of the proprietor. Article 302, of our Penal Code expressly makes the agent or employee criminally liable when he opens or keeps open such place of business on Sunday. The third ground of the motion is, that the complaint was filed on Sunday. There is nothing in this. Lindsay v. State,39 Tex. Crim. 468. The fourth and last ground of the motion is, that the complaint was taken before the assistant county attorney, with reference being made to the county attorney. This is the proper practice. Dane v. State, 36 Tex.Crim. Rep.; Kelley v. State, 36 Tex.Crim. Rep.; Article 34, Vernon's C.C.P., and authorities.

Being unable to agree to any of the contentions made by appellant in his said motion for rehearing, the motion will be overruled.

Overruled.