Appellant testified that he was the proprietor of the Queen Moving Picture Theater, in which moving pictures were displayed for profit, and that he had a license therefor; that on Sunday he kept his place of business open, charged the public an admission fee for entering and exhibited moving pictures. These pictures he describes as being a moving picture entitled "Under Four Flags," being one of a series of pictures designed to display incidents of the preparation and participation of the United States in the war with Germany. The pictures, he said, were prepared under the auspices of the government.
He requested the court to instruct the jury thus:
"Before you can find the defendant guilty in this case, you must not only find that he kept open a place of amusement on Sunday and charged an admission fee therefor, but you must further find from the evidence that such amusement was either a circus, a theater, or a variety theater, or was of the same kind or nature as a circus, theater, or variety theater; and unless you do so find, you will acquit the defendant."
The court refused this charge, and instructed the jury to determine whether the appellant was the proprietor of a moving picture theater, whether he kept his place of business open on Sunday for the purpose of amusement, and exhibited therein a moving picture show, charging an admission fee. These, I think, were the facts for the jury to determine. It is said in Bishop's New Criminal Procedure, vol. 2, sec. 908:
"In general terms, it is a question of law for the court to determine whether an alleged combination of acts and intent constitutes a crime, and the question of fact whether or not the defendant did the things and entertained the intent."
As construed by this court, the statute does not forbid the exhibition of a baseball game on Sunday to which an admission fee is charged (Ex parte, Roquemore, 60 Tex.Crim. Rep.); that is, it does not include all amusements, but only such as those named in the statute and others like or similar thereto.
As commonly understood, a moving picture show is a place where the drama is displayed, and is a species of theater coming within our Sunday law statute. P.C. Art. 302; Ex parte Lingenfelter,64 Tex. Crim. 30; Zucarro v. State, 82 Tex.Crim. Rep.. There were no controverted facts in this case. Whether the exhibition given was one prohibited under our statute, was a question of law, and whether it was exhibited on Sunday for an admission fee in appellant's moving picture theater, was a question of fact.
"The moving picture show is in actual fact a scenic representation, and by the very best authority a scenic representation is a theatrical entertainment or performance." *Page 555
Myers v. State, 5 Ohio App. Rep., 158. The exhibition in question was a senic representation. It was designed and exhibited to entertain the public. It was displayed in appellant's place of business, designed and exclusively used for the exhibition of amusements in the form of moving pictures. At the present time, I think it may be safely said, that the greatest means of public amusement is the exhibition of moving pictures. It is true that moving pictures have other uses, some educational, some scientific. International Encyc., vol. 16, p. 378. In my opinion, it is not essential that a public amusement divert the audience. It suffices if it is designed to entertain them. Among other definitions, an amusement is defined as "a pastime, an entertainment," and the latter is defined "a mental enjoyment, instruction, or amusement afforded by anything seen or heard." Century Dictionary.
In the opinion of the writer, the trial court did not err in holding that under the facts the acts of the appellant constitute a violation of the Sunday law. I therefore concur in the result.
December 8, 1920.