Sayeg v. State , 114 Tex. Crim. 153 ( 1930 )

Offense, violation of Sunday law by keeping open a picture show and charging an admission fee; penalty, a fine of $35.00.

The State's testimony sufficiently shows that the Grand Theater in Ennis, Ellis County, Texas, was kept open and operated on Sunday afternoon; that in front of the same at the time was a box for free will offerings into which some of the patrons of the show were shown to deposit money. There were some eight or ten dollars in the box. A man was out watching after the box. In front of the show was the sign:

"REGULAR ADMISSION 10c 30c TODAY YOUR FREE WILL OFFERING." The prosecution is under Art. 286, P. C., which makes it an offense to keep open a place of public amusement on Sunday and which charges an admission fee. It is claimed that since no admission fee was charged and such fact being necessary to prove under the above statute, the State has failed to make out its case. Under a state of facts paralleling those shown here it was held that the method employed as detailed above was but a subterfuge and evasion of the law which would not be countenanced. McLeod v. State, 77 Tex.Crim. Rep.. See also notes to this case in L. R. A. 1916B, page 1124.

It is next contended that Art. 286 and 287, P. C., construed together grant special privileges to certain classes and are therefore unconstitutional; that under the terms of Art. 287, P. C., the keeper of a drug store may sell groceries, dry goods, etc., on Sunday, whereas a dry goods merchant is prohibited from so doing. A sufficient answer to this is that the article in question grants no such privilege to a druggist. This exact question was before the Court in the case of Searcy v. State, 40 Tex.Crim. Rep., and answering a similar contention, Judge Henderson uses this language:

"In other words, he insists that the exemption from the operation of the law of keepers of drugstores, etc., is a personal exemption in favor of such citizens, and authorizes them to deal in goods, wares, and merchandise that other citizens are inhibited from dealing in. If this were a correct construction and interpretation of the law, his contention would be sound. But we do not so regard it. The exemption, as we construe it, is in favor of the article sold by the persons who deal in such articles; and it was not only competent for the Legislature to pass a Sunday law (Ex parte Sundstrom, 25 Texas Criminal Appeals, 133), but the Legislature was also authorized, under its police power, to exempt certain articles of merchandise as common necessities, the sale of which should not be forbidden by law. Drugs and medicines were very properly placed in this category, and the keeper of a drugstore is authorized to sell drugs and medicines, but not other goods that do not belong in this class."

Both of the above cases seem decisive of the questions raised by appellant and we follow them without comment.

It is insisted that the charge of the Court was erroneous, but if such alleged errors were timely presented in the trial, it is not made to so appear in the transcript. See Whitfield v. State, 104 Tex.Crim. Rep.; Vernon's C. C. P., Art. 666, Note 60.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.