Appellant by his motion for rehearing, in effect, urges again all the questions which were originally raised by *Page 162 his appeal and which were discussed and passed upon by this court in the original opinion. There is but one which we think it necessary to further discuss. All the others are stated and sufficiently discussed and correctly decided in the original opinion.
This particular one we will now further discuss is whether or not this court has properly interpreted the law under which appellant was convicted.
Appellant's able attorneys in a bold and vigorous oral argument, and also by their brief, urge only this one question. Their brief presents the matter in their usual clear, vigorous and forcible way. As we understand, they contend: That as the language of the Act under which appellant was convicted is plain and unambiguous, there is no room for judicial construction in arriving at the real meaning and scope of the Act; that, therefore, this court can not transpose the language of the Act, and that by transposing it the court, and not the Legislature, has made acts penal which are not made so by the law; that the general principle of law enunciated by text-book writers and courts to the effect, that in misdemeanors, all who participate in the commission of an offense are principals, and that our laws on that subject and the subject of accomplices have no application whatever in the offense charged against the appellant in this case; and that the Thirty-Second Legislature, expressly refused to enact a statute embracing the very matters construed into article 199 of the Penal Code by this court in the original opinion and refer to H.B. 497, introduced in the Thirty-Second Legislature to bear out this latter contention. We believe we have thus stated substantially and in effect all of appellant's contentions on this point.
In oral argument appellant exhibited to the court said H.B. 497, with the report of the chairman of the committee to whom it was referred, recommending "that it do not pass." As a matter of fact the Legislature — neither House — acted, and it is not claimed that they did act, on the bill in any other way whatever. So that appellant's contention that the Legislature refused to enact such a statute is not borne out by the record. Neither does the fact that the committee to which it was referred reported back to the House with the "recommendation that it do not pass," show, or tend to show, that the reason it did not pass was because the Legislature was not in favor of enacting the bill so as to change the law from what it now is. We take it that the reason the Legislature did not change the Act is because it is already sufficiently comprehensive, clear and to the effect as was held by this court in its original opinion.
As stated by this court in the original opinion, in transposing the language as we did, it was merely done "in order to make clear what we believe was certainly intended by the Legislature." We also said in the original opinion that the interpretation we gave to the Act of the Legislature, in connection with the principle announced, and authorities cited, that "in misdemeanor cases all parties are principals; *Page 163 there are no accomplices, . . . whether the language of the enactment is transposed as we have suggested above or not," is the correct interpretation thereof. It is clear to us that we have diligently sought, and unquestionably found and announced what was the clear intent of the Legislature, in interpreting the Act as we have, and that we have not made acts penal which are not made so by the law — the legislative enactments — as contended for by appellant; but on the contrary, have given effect to the clear intent of the Legislature.
Appellant, in his contention, cites us to article 9 of the Penal Code, which, in effect, is that criminal laws shall be construed according to the plain import of the language in which they are written without making the distinction usually made between the construction of penal laws and civil laws; and to article 10, Penal Code, to the effect that when the statute specially defines the words used in the enactment of the statute that they shall have that special meaning, but that when not so specially defined they are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter to which they are employed. He also calls attention to the fact that the case of Murray v. State, 21 Texas Crim. App., 620, cited by this court, and other cases he cites, announce and apply the same rules of construction and emphasizes that rule which is, "if the words employed are free from ambiguity and doubt and express plainly, clearly and distinctly the intent according to the most natural import of the language, there is no occasion to look elsewhere."
Of course, all these rules, wherever used in the interpretation of statutes, are used and applied solely for the purpose of determining what was the intention of the Legislature in the use of the words and the language as used by it in the enactment; for as was aptly said by our Supreme Court, through Chief Justice Gaines, in Edwards v. Morton, 92 Tex. 152, and reiterated by this court in Parshall v. State, 62 Tex.Crim. Rep.,138 S.W. 759, and other cases: "The intention of the Legislature in enacting a law is the law itself."
Appellant's attorneys in their brief also cite sections 349 and 350 of Sutherland on Statutory Construction, quoting in their brief most of these two sections, but omitting what we think is the most important feature in section 349. The author in this section, after stating that in the construction of penal laws they should be strictly construed, as it is the Legislature, not the court, which is to define a crime and ordain its punishment, which was quoted by appellant's brief, adds, which they omit: ". . . It is said that, notwithstanding this rule, the intention of the lawmaker must govern in the construction of penal as well as other statutes. That is true. But this is not a new independent rule which subverts the old. It is the modification of the ancient maxim, and amounts to this: that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the Legislature. The *Page 164 maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation, or in that sense in which the Legislature has obviously used them, would comprehend. The intention of the Legislature is to be collected from the words they employ, . . ." By what we have shown appellant's attorneys omitted, is not to be construed as any reflection whatever upon them, for we neither mean nor imply any such thing. In quoting the portion of this section they show they omit part of it. We simply call attention to and quote it, to show that the court must seek to find from all the language used the intent of the Legislature, and even the common law rule of construction that criminal statutes are to be strictly construed, must not prevent the courts from determining from the Act itself what the intention of the Legislature was. Mr. Sutherland in these two sections cited and quoted in appellant's brief, is discussing, as his work shows, the rule of "Strict Construction." His next chapter is on "Liberal Construction," and under it we quote as applicable to this question sections 415 and 416, as follows:
415. "A statute extends no further than it expresses the legislative will. When it is held to embrace a case which is within its spirit, though not within its letter, it is not meant that the courts have authority to extend a statute to cases for which it does not by its words provide, or beyond the sense of its language. A statute is a written law, and it can not be construed to have a sense and spirit not deducible from its provisions. It is a general rule that courts must find the intent of the Legislature in the statute itself. Unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, they must receive a general construction; the courts can not arbitrarily subtract from or add thereto. Themodern doctrine is that to construe a statute liberally, oraccording to its equity, is nothing more than to give effect toit according to the intention of the lawmaker, as indicated byits terms and purposes. This construction may be carried beyondthe natural import of the words when essential to answer theevident purpose of the Act; so it may restrain the general wordsto exclude a case not within that purpose. (Italics ours.)
416. "There is no arbitrary form of words to express any particular intention; the intent is not identical with any phraseology employed to express it. Any language is but a sign, and many signs may be used to signify the same thing. In statutes the sense signified is the law; the letter is but its servant or its vehicle. Language is so copious and flexible that when general words are used there is an absence of precision, and all words and collocations of words admit of more than one interpretation. In the construction of remedial statutes, while the meaning of the words is not ignored, it will be subordinated to their general effect in combination in a whole act or series of acts, read in the light of all the pertinent facts of every *Page 165 nature of which the courts take judicial notice. Liberalconstruction of any statute consists in giving the words ameaning which renders it more effectual to accomplish the purposeor fulfill the intent which it plainly discloses. For thispurpose the words may be taken in their fullest and mostcomprehensive sense. Where the intent of the act is manifest,particular words may have an effect quite beyond their naturalsignification in aid of that intent." (Italics ours.) We have quoted these sections from volume 2 of Lewis' Sutherland Statutory Construction, sections 589 and 590, of that edition.
Article 25, Code Criminal Procedure, is: "The provisions of this code shall be liberally construed so as to attain the objects intended by the Legislature; the prevention, suppression and punishment of crime." Article 3268, Revised Statutes, is: "The following rules shall govern in the construction of all civil statutory enactments: . . . (Subdivision 6.) In all interpretations the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil, and the remedy." Notwithstanding this is the statute as to the construction of civil laws, as this court in Murray v. State, 21 Tex.Crim. Rep., said of Revised Statutes, article 3269, so we say of this article 3268: "Though embraced in the civil statute, is in our opinion equally as applicable, and of binding force in criminal prosecutions." These statutes, in connection with articles 9 and 10 of the Penal Code, all of which must be construed together, require this court, as we understand it, to construe all of the penal enactments of the Legislature liberally, and that the old or common law rule that they were to be construed strictly has been abrogated. The Road cases,30 Tex. 503; Ex parte Gregory, 20 Texas Crim. App., 210; Ex parte Garza, 28 Texas Crim. App., 381.
There are many other rules for the interpretation of statutes. They are all, however, for no other purpose than to aid in arriving at the true intention of the Legislature. We will call attention to only some of them.
This court, through Judge Davidson, in Yakel v. State,30 Tex. Crim. 391, said: "Statutes should be so construed as to prevent mischievous consequences. Such construction finds itself supported in the good order of society, protection of the weak against the strong, and should be favored, and more especially if such a construction be in opposition to one that would tend to bring about evil results. The People v. Garrett (Mich.), 36 N.W. Rep., 234; Holmes v. The State, 88 Ind. 145; The Am. Eng. Ency. of Law, p. 702, note 2.
"The purpose and object of the Legislature in enacting the statute being known, it is the duty of the court to so construe it as to conform to that intent and carry out such purpose."
In Chapman v. State, 16 Texas Crim. App., 76, Judge Willson, for this court, said; "When the intention of a statute is plainly *Page 166 discernable from its provisions, that intention is as obligatory as the letter of the statute, and will even prevail over the strict letter. (Brooks v. Hicks, 20 Tex. 666; Forshey v. Railroad Co., 16 Tex. 516.) A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter is not within the statute unless it be within the intention of the makers. (Holmes v. Carley, 31 N.Y. 289; Chase v. Railroad Co., 26 N.Y. 523.) In construing a statute the principal object should be to arrive at the intention of the Legislature. Such construction ought to be given the statute as will best answer the intention which its makers had in view. Whenever the intention can be discovered, it ought to be followed, although it may seem to be contrary to the letter of the statute. (People v. Utica Ins. Co., 15 John. R., 358, 380; Sedgw. on Con. Stat. Law, p. 225 et seq.; Potter's Dwarris on Stat., p. 174 et seq."
In Albrecht v. State, 8 Texas Crim. App., 313, Judge Clark, for this court, in construing the original article 186 (now 199), of the Penal Code, 1879, Act of 1871, hereinafter quoted, said: "The obvious intention of the Legislature, as manifested in article 186 (now 199) of the Penal Code, was to prevent altogether the barter and sale of merchandise on Sunday, and to prohibit all merchants, grocers, dealers in wares or merchandise, or traders in any lawful business whatever, from desecrating the Sabbath, and distracting with their avocations the peace and quiet of other portions of the community, who might desire, from religious or other considerations, to devote the day to the worship of God, and to entire rest from their daily employments. This purpose, so manifest, can not be disregarded in the search for a proper rule for construction, but must be given effect to, unless qualified or restricted by some potent provision of law rendering a contrary construction imperative. If a reasonable construction of the language would tend to effectuate this purpose, and another construction equally as reasonable would have a contrary tendency, under well-established canons of construction courts should not hesitate in choosing the former to the exclusion of the latter. Intention frequently controls express language in the construction of a statute. Walker v. The State, 7 Texas Ct. App. 245[7 Tex. Crim. 245][7 Tex. Crim. 245]."
In Sartain v. State, 10 Texas Crim. App., 651, Judge White, for this court, said: "`Courts are not confined to the literal meaning of the words employed, in the construction of statutes, but, as was said in Burgett v. Burgett, 10 Reports, 221, the intention of the lawmakers may be collected from the cause or necessity of the Act; and statutes are sometimes contrary to the literal meaning of the words. It has been decided that a thing within the letter was not within the statute unless within its intention. The latter is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. (4 Bac., title Statute, 1, sections 38, 45, 50.) Every statute should be construed with reference to its object, *Page 167 and the will of the lawmakers is best promoted by such a construction as secures that object and excludes every other.' Castner v. Walrod, 83 Ill. 171; Walker v. State, 7 Texas Crim. App., 245."
In Whisenhunt v. State, 18 Texas Crim. App., 491, Judge White, for this court, said: "It is a well-settled rule of statutory construction `that the intent and meaning should be followed, although it may seem to be contrary to the letter of the statute.' (Sedgwich on Statutory Construction, 256.) `Statutes are to be construed according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute.' (Id., p. 313; 4 Cush., 314; 4 Mo., 444.)"
It is earnestly and forcibly contended by appellant's attorneys that the proper construction of article 199, Penal Code, is that the statute clearly limits those who may commit the offense, to the "proprietor" or "his agent," or "his employee," and before one of these can be found guilty of the offense he must have committed the overt act necessary to constitute the offense, that is, it must appear that he, the "proprietor," or the proprietor's "agent," or the proprietor's "employee," did permit the "proprietor's" — not "his, the agent's," nor "his, the employee's," — place of public amusement to be open for public amusement on Sunday, and that our statutes, articles 74-5, on the subject of principals, and article 79 et seq., on the subject of accomplices, have no application whatever to the offense charged against appellant in this case. They cite us to Mitchell v. State, 34 Tex.Crim. Rep.; Carlton v. State, 51 S.W. Rep., 213; Sparks v. State, 51 S.W. Rep., 1120; Cook v. State,42 Tex. Crim. 539; Humphries v. State, 68 S.W. Rep., 681, and Strong v. State, 52 Tex.Crim. Rep., as sustaining their contention. We think appellant is clearly wrong in this, and that these cases, instead of sustaining their contention, establishes, in connection with the enactments of the Acts, the reverse. In discussing this matter we will first take up the Disorderly House Act and show its various enactments.
Judge Ramsey, for this court, in Ex parte Muckenfuss,52 Tex. Crim. 467, correctly said: "It has been held in Braun v. State, 40 Tex.Crim. Rep., that in construing a revision of statutes, the presumption is, that the codifiers and the Legislature did not intend to change the laws as they formerly stood, and that the original Act, as it existed before the adoption of the codification, may be looked to in construing its meaning as it appears in the Code. The case of Runnells v. State, 45 Tex.Crim. Rep., not only approves the principle of the Braun case, but may fairly be said to go further. The syllabus of that case, which fairly states the holding of the court, is as follows: `Though the compilers of the code failed to bring in certain provisions of a statute, the court in construing the statute in the code may look to the original for aid in construction, *Page 168 but can not bring forward any portion of the statute as it formerly existed.'"
Presiding Judge Davidson, in the Mitchell case, says: "We are of the opinion that this contention `(that is, that only the owner, lessee or tenant, and not those who were the servants or inmates of such house were amenable under this statute)' is a sound one, owing to the peculiar phraseology of that statute. This view of the matter is strengthened when the former law is looked to, to ascertain the legislative intent. Prior to the latter or amended Act, all persons who were guilty of keeping such houses were subjected to the prescribed punishment. In amending the law, it was provided that owners, lessees and tenants only should be punished. By fair intendment it would seem that only those who occupied such relation to the inhibited house as owner, lessee or tenant could be punished under the amended statute." By this language alone, we think the distinction is pointed out and clearly made by Judge Davidson. Again, in the same opinion it is said, "Viewing the present statute from the standpoint of the entire legislation in this State, in regard to keeping disorderly houses, it seems clear that the Legislature intended to do so, and did so change the law in this respect as to limit the offense to those persons who own, or as tenants or lessees of the prohibited houses, to the exclusion of those who occupied the relations of servant or mere inmates of such disorderly houses."
Judge Davidson does not take up and copy these enactments, but we now do so. The Act of February 12, 1858, which was made articles 339 and 341 of the Penal Code, as revised in 1879, was as follows:
339. "A disorderly house is one kept for the purpose of public prostitution or as a common resort for prostitutes and vagabonds.
341. "Any person who shall keep or be in any way concerned in keeping a disorderly house, as defined above, shall be fined not less than one hundred, nor more than five hundred dollars." That Act as it thus stood, as it specifically says, made "any person" amenable to the law who should keep or be in any way concerned in keeping such house. Then the Act, the court through Judge Davidson was construing, was amended by the Act of April 4, 1889, page 33. It is unnecessary for this discussion to quote article 339, as amended by that Act, but article 341 was then enacted as follows: "Any owner, lessee or tenant, who shall keep, or be concerned in keeping, or knowingly permit the keeping of a disorderly house, in any house, building, edifice or tenement, owned, leased or occupied by him shall be deemed guilty of keeping or being concerned in keeping, or knowingly permitting to be kept, as the case may be, a disorderly house and shall be punished by a fine of two hundred dollars for each day he shall keep, be concerned in keeping, or knowingly permitting to be kept such disorderly house. Any owner having information that his house is being kept, used or occupied as a disorderly house, shall *Page 169 be guilty of knowingly permitting his house to be kept as a disorderly house under this Act, unless he shall immediately proceed to prevent the keeping, using or occupying of such house for such purpose by giving such information to the county or district attorney against such lessee, tenant or occupant for violation of this Act, or take such other action as may reasonably accomplish such results." It will be seen by this that the first Act made "any person" guilty who did certain things. That was amended so as to cut out "any person" and restricted it specifically, by the amended Act of 1889, to the "owner, lessee or tenant." Hence, Judge Davidson said in that case, "owing to the peculiar phraseology of that statute," and "from the standpoint of the entire legislation of this State in regard to the keeping of disorderly houses," only the owner, lessee or tenant could be punished thereunder.
Even Judge Davidson, himself, for this court, in Flynn v. State, 35 Tex.Crim. Rep., had to qualify the opinion in the Mitchell case as too restrictive, and distinguished the Flynn case from the Mitchell case, holding in the Flynn case that under article 426, Code Criminal Procedure, which provides that where one person owns the property and another person has the possession, charge or control of the same, the ownership thereof may be alleged to be in either; that as the appellant Flynn was in charge and control of the house, though not the owner, he was held to be the owner for the purposes of that prosecution and a conviction was sustained. This modification of the Mitchell case seems not to have been noticed by this court in subsequent cases decided under that statute.
Now let us see what the enactments of the Legislature are on the Sunday law, the law under discussion in this case. The Act of December 2, 1871, which was made article 186 of the Penal Code of the revision of 1879 (now 199), was: "Any merchant, grocer or dealer in wares or merchandise, or trader in any lawful business whatsoever, who shall barter, or sell on Sunday, shall be fined not less than twenty nor more than fifty dollars; provided, this article shall not apply to markets or dealers in provisions as to sales made by them before 9 o'clock a.m." By this it will be seen that this law made only any "merchant, grocer or dealer" amenable to the law, and did not, by its express provisions, extend it to the agent or employee of any such merchant, grocer or dealer. This article of the Penal Code was next amended by the Act of April 10, 1883, page 66, by providing as follows: "Any merchant, grocer or dealer in wares and merchandise, or trader in any lawful business whatsoever, or the agent or employee of any suchpersons who shall sell or barter on Sunday shall be fined not less than twenty nor more than fifty dollars; provided . . ." (It is unnecessary to quote the proviso.) It is seen that while perhaps the Act of 1871, Penal Code, article 186, of the revision of 1879, limited the persons who were guilty thereunder to the "merchant, grocer or trader," himself, that this *Page 170 Act of 1883 added "or the agent or employee of any such persons." The very reverse of what had been done in the Disorderly House Act, which was construed by Judge Davidson in the Mitchell case, and others. This Act of 1883, article 186, Penal Code, was then again amended by the Act of April 2, 1887, p. 108, which is the Act now in force and under which appellant was prosecuted, as article 199, Penal Code. It is as follows:
"Any merchant, grocer or dealer in wares or merchandise, ortrader in any business whatsoever, or the proprietor of any placeof public amusement, or the agent or employee of any such person, who shall sell, barter or permit his place of business or placeof public amusement to be open for the purpose of traffic orpublic amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term place of public amusementshall be construed to mean circuses, theaters, variety theatersand such other amusements as are exhibited and for which anadmission fee is charged; and shall also include dances atdisorderly houses, low dives and places of like character with orwithout fees for admission." Under this enactment, for the first time, Sunday theaters, to which an admission fee was charged, was made an offense, and under this amendment it was first also made an offense for any grocer, merchant, etc., to permit his place of business to be open for traffic.
We will restate briefly some of the facts in this case. The appellant introduced no testimony whatever. It was clearly shown by the State, and not contradicted, that he was the ticket agent in the ticket office of the building, where the theater was open and running, sold admission tickets thereto and stated that he was such ticket agent, and upon these tickets sold by him persons went into the theater proper and saw and heard it. And that the theater was open and a play enacted on the stage, which was seen and heard by these persons who had gained admission thereto by reason of the tickets sold to them by appellant. The lease to the Interstate Amusement Company of this building in which the theater was held, expressly provided that that building so leased and operated and of which the ticket office formed a part, "was to be used for any and all theatrical purposes." That all this occurred on Sunday, November 14, 1909.
It seems to us clear that the main purpose and intention of the Legislature in these various first enactments was to prohibit bartering or selling on Sunday. Albrecht v. State, supra. It was doubtless, in 1871, believed by the Legislature that to make it an offense and to punish merely the merchant, grocer or dealer, would prevent or stop bartering or selling on Sunday. But by 1883, no doubt, the merchant, grocer or dealer began to hide behind his agent or employee, or make sales and barker through them. Hence, the Legislature then made it not only an offense for the merchant, grocer, or dealer himself, but also for his agent or employee to sell, etc. In the meantime, by 1887, the merchant, etc., and his agent or employee, *Page 171 doubtless, began to elude the law by claiming that they were not selling, etc., but merely keeping their places of business open. Therefore, not only to prevent them from selling, etc., the Legislature then determined to make it an offense to keep open for the purpose of traffic, whether any sales were made or not. And by this time also the population of the State had so increased and the towns and cities therein were getting so large in population that the Sunday theater was begun and the Legislature then determined to include that in the prohibition, too. Hence, the enactment of 1887, now article 199, Penal Code. The intent and purpose of the Legislature clearly was to stop and prevent the Sunday theater when an admission fee was charged thereto. The admission fee was and is the inducing cause to the proprietor to run his theater on Sunday. The ticket agent, therefore, is one of the most important of his agents or employees. There may be and doubtless are many other necessary and proper agents and employees required to help him run a Sunday theater.
Article 74 of the Penal Code is: "All persons are principals who are guilty of acting together in the commission of an offense." Article 75 is: "When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by acts, or encourage by words or gestures, those actually engaged in the commission of the unlawful act . . . are principal offenders, and may be prosecuted and convicted as such." Each of these articles and article 79 et seq. of the Penal Code were all enacted long prior to the enactment of any of our Sunday laws shown above, and they have continuously been in force from the time of the adoption of our original codes. These articles apply and were intended by the Legislature to apply to each and every enactment subsequent thereto and are applicable, unless otherwise stated, to each and every offense then in force or subsequently enacted. And we hold expressly that they are applicable to the offense created, prohibited and punished under said article 199, Penal Code.
As held by this court in the original opinion, all parties are principals in misdemeanor cases. There are no accomplices. This principle of law is expressly recognized and approved by this court in the opinion of Judge Davidson in the case of Strong v. State, 52 Tex.Crim. Rep., and additional cases to those cited in the original opinion herein, are cited therein by him in support thereof. Neither does the opinion of Judge Davidson in the Strong case hold that that principle would not be applicable to the questions arising in this. But he held in that case that the statute he was then construing was in effect the same as the Disorderly House Act which he construed in the Mitchell case, supra. This doctrine is more fully stated by Mr. Branch in his recent work on Texas Criminal Law thus: "There is no distinction between principals and accomplices in misdemeanors: A party who would be an accomplice if the offense was a felony, is a principal if the offense is a misdemeanor. If the *Page 172 defendant comes either within the definition of an accomplice, or a principal, he is a principal in a misdemeanor," citing many decisions of this court. We approve as the law what he says quoted above. See section 681, p. 432, Branch Texas Criminal Law.
Under these various enactments of the Sunday law and how they were added to from time to time, retaining at all times after the first insertion, the words "or the agent or employee of any such person," it is clear to us that we reached and announced the correct interpretation of the present statute in the original opinion herein. We can not agree to appellant's contention that the agent or employee is not amenable under this statute, unless such agent and employee has the power and authority from the proprietor of the theater to open or close it. The very use of the words "agent or employee" and especially of the word "employee," taken in connection with our statute on the subject of principals, indicates clearly and without doubt to us that the Legislature intended that whoever permitted the theater to be open, when an entrance fee was charged, or aided or did any act in aid thereof, was amenable to this law. As we understand the word "employee" is, for all purposes, in effect, synonymous with servant. "A servant is defined to be a person employed to labor for the pleasure or interest of another; especially in law, one employed to render service or assistance in some trade or vocation, but without authority to act as agent in place of his employer; an employee." 26 Cyc., 965. If the Legislature had intended that only the proprietor who permitted his place of public amusement to be open on Sunday, should be amenable, it would not have added "or the agent or employee of such person." An agent, in the broadest sense and use of the word, might be construed to have the same power and authority as his principal, but no such inference could be drawn from the use of the word employee. It was evidently used by the Legislature to apply to any subordinate who did not have the power and authority of his principal or the proprietor. Each and every agent or employee of the proprietor in some way acts together with his proprietor, in the commission of the offense, or aids by acts, or encourages by words or gestures, the proprietor in permitting his theater to be open and run on Sunday; and each person who acts with the proprietor in the commission of the offense, or aids him by acts or encourages him by words or gestures, are, under our law, principals and are amenable to our Sunday laws on this subject, whether they have the power and authority from the proprietor of the theater to open or close it or not. They can not claim with any show of reason, or fact, that they do not know his unlawful intent and act. Hence, under the very terms of our laws, articles 199, 74 and 75 of our Penal Code, they are violators thereof. Of course, they would also be amenable if they had the power and authority to open or close the theater, or, as it is expressed in article 199, "permitted" this, as well. *Page 173
"It is not necessary to allege the facts relied upon to show the defendant to be a principal, although the offense may not have been actually committed by him. If he is a principal by reason of the part performed by him in the commission of the offense, he may be convicted under an indictment, or complaint and information, charging him directly with its actual commission." White's Ann. Penal Code, section 86, subdivision 2; Williams v. State, 42 Tex. 392; Gladden v. State, 2 Texas Crim. App., 508; Davis v. State, 3 Texas Crim. App., 91; Tuller v. State, 8 Texas Crim. App., 501; Mills v. State, 13 Texas Crim. App., 487.
It might be not only appropriate, but it would also be proper in some cases to charge and apply the law of principals. It seems the charge of the court in this case did not do that. No complaint whatever on that ground is made by the appellant. The proof in this case was uncontradicted and shows that appellant violated and was amenable to our law.
Without further comment or quotation than was given in the original opinion herein of the case of Burnett v. State,42 Tex. Crim. 600, and other cases to the same effect, cited therein and by us in the original opinion, we think it clearly construes our laws as we have construed them herein on the subject discussed herein, and that they fully and completely sustain our opinion herein.
We have reached these conclusions after careful and patient investigation and with the best thought that we are able to give thereto. The motion for rehearing will, therefore, be overruled.
Overruled.
DAVIDSON, PRESIDING JUDGE, dissenting, will write later.
[Opinion finally delivered January 1, 1912, but did not reach the Reporter until March 21, 1912. — Reporter.]