The information charges that appellant on the 21st day of March (Sunday) was the proprietor of a place of public amusement, a picture show, and permitted a moving picture show to be exhibited in said place of public amusement and for which an admission fee was charged. When he was tried he was adjudged guilty, and he brings the case to this court upon one assignment of error — that the evidence does not show that an admission fee was charged, and was, therefore, insufficient to sustain the judgment.
Appellant himself testified: "My name is E.L. McLeod. I am the owner and manager of the Isis moving picture show, located at No. 2403 North Main Street, in the City of Fort Worth. I have been operating this show for more than one year. It is fully equipped for a moving picture exhibition. The usual admission fee charged for admitting a person into this show on week days is five and ten cents. *Page 367 On Sunday, the 21st day of March, 1915, I gave an exhibition of moving pictures in the afternoon and night of that day. The show was opened at 2 o'clock in the afternoon and continued open until 10 o'clock of that evening. No admission fee was charged, and no tickets were sold. The young lady who always sits at the ticket window during week days for the purpose of selling tickets was not there. All orderly persons desiring to witness the moving pictures on that day were admitted free and allowed to depart without being asked or required to pay an admission fee. I was personally in charge of the show and was in and about the premises during the whole of the afternoon and evening for the purpose of looking after the comfort of those attending the show, and to preserve order as it was usual for me to do on other days. No one else was on duty about the show that day except myself and the operator of the picture machine. I paid the operator for his services on that day. The music was provided by an electric piano, and the pictures exhibited were similar to those shown weeks days. Before the show was opened I placed a glass jar near the ticket window on the outside for the purpose of receiving donations from any person who wished to donate on entering the show. The donations dropped into the jar amounted to $30.50. I took charge of this money and applied it to my own use as I would any other money I considered my own."
It is thus seen that no tickets were sold, and no admission fee demanded; a receptacle was placed where the ticket seller stood on other days of the week, in which to receive contributions.
Our statute provides that the proprietor of any place of public amusement who shall permit his place of public amusement to be open for the purpose of traffic or public amusement on Sunday shall be fined not less than $20 nor more than $50. If the statute stopped there, there could be no question that the above state of facts would render appellant guilty of violating the law, but in the statute it is stated, "the term place of public amusement shall be construed to mean circuses, theaters and other such amusements as are exhibited and for which an admission fee is charged." Appellant contends that a literal construction should be given to the word "charged," — that is, that a price was demanded before one was admitted to the show, and cites us to the case of Ex parte Jacobson, 55 Tex.Crim. Rep., in which the following language was used: "A reading of the law makes it evident that the opening of places of amusement is not a violation of the law, unless an admission fee is charged. If an admission fee is not charged, though the place of amusement is open on Sunday, there would be no violation of its provisions." While we do not question the rule of law there announced, if a proper construction is given to the words "admission fee charged," yet such expression of opinion in that case was but obiter dicta. The question was not involved in that case, for in that case the opinion makes it plain that an admission fee was charged, demanded and received from each and every person who entered the theater. The question in that case was solely whether or not the appellant in that case, with others, was guilty of an unlawful *Page 368 assembly. That and that alone was decided. Appellant also refers us to article 10 of the Penal Code, which reads: "Words which have their meaning specifically defined should be understood in that sense, though it be contrary to their usual meaning, and where words are not defined 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 relative to which they are employed." Appellant would have us take the words "admission fee is charged" in the sense they are understood in common language, without taking into consideration the context and subject matter to which they are employed. This we are not authorized to do, for one provision is equally binding as the other, and both are binding on this court, and it has always been held in passing on the meaning of a word used in the Code, we must take into consideration the entire provision and ascertain the intent of the Legislature in the use of the word, taking into consideration the context and subject matter, and if the intent can be ascertained, it must govern over the literal import of the words, without regard to grammatical rules. Brooks v. Hicks,20 Tex. 666; Walker v. State, 7 Texas Crim. App., 245; Rigby v. State, 27 Texas Crim. App., 55; Sartain v. State, 10 Texas Crim. App., 651; Albrecht v. State, 8 Texas Crim. App., 314; Barkley v. State, 28 Texas Crim. App., 99; Ex parte Robinson, 29 Texas Crim. App., 186.
Taking into consideration the entire provision of the Code that it shall be unlawful for any place of public amusement to be open on the Sabbath for public amusement, and that the term "place of public amusement" shall be construed to mean theaters and such other amusements as are exhibited and for which an admission fee is charged, it is, we think, clear that it was the intent and purpose of the Legislature to prohibit any such place to be open on Sunday where a remuneration was received and accepted by the proprietor for keeping his place open and giving such public amusement. In this case appellant placed a jar at the point where the ticket seller usually stood, a silent solicitor for contributions — pay for admission to the picture show. It was not compulsory, but if the "contributions" received on a few Sundays should be too small to pay the necessary expenses of running the picture show, we are satisfied the generosity of the proprietor would fall to a low ebb, and the picture show be closed on the Sabbath. The "silent solicitor of contributions" is but a substitute for a ticket seller, and such attempted evasion of the law can not be countenanced. It has been attempted before in this State, and failed. In the case of Wallis v. State, 78 S.W. Rep., 231, a saloon keeper kept his place of business closed, but handed out two bottles of beer that he claimed to have sold on Saturday, but was to keep on ice. Such acts were held to be but an attempt to evade the plain provisions of the law.
In the case of Knox v. State, 77 S.W. Rep., 13, the appellant kept his doors closed, but left one unlocked which people could open and go in. This was construed to be keeping his place of business open for the purpose of traffic, although all openings were closed. This *Page 369 court said: "If even the doors were closed by defendant, as is here shown, and parties passed in and out as they pleased, that would be evidence of the fact that his saloon was open." In that case the word "open" was not given its literal meaning, but it was taken in connection with the other provisions of the Act and given a sensible construction that would effectuate the purposes of the law. So in this case, it is our duty to give to the article of the Code the construction that will render it effective — prevent people from keeping open on Sunday their theaters and such place of public amusement where a remuneration is expected and received by the proprietor for so doing. In this instance it is shown he received $30.50 for the performances given on that day, which we are satisfied is about as much as he would have received had a ticket seller stood at the door and demanded an admission fee.
Since this court construed the Sunday law as prohibiting the operation of moving picture shows on Sunday in Ex parte Lingenfelter, a session of our Legislature has convened and passed. During its session a bill was introduced authorizing cities to permit moving picture shows to be operated on Sunday if they so desired, it being House Bill No. 182, and it was overwhelmingly defeated, the vote being 72 to 43, — thus making it clear that it was not the intent and purpose of the Legislature in enacting the Sunday law to permit moving picture shows to be operated on Sunday.
In the opening chapters of that holy book, the Bible, we find that "in the beginning God created the heavens and the earth. . . . And the heavens and the earth were finished, and all the host of them. And on the seventh day God finished his work which he had made; and he rested on the seventh day from all His work which he had made." We are further informed that man was made in the image of God, and from the beginning of time experience has shown that in creating man God so framed his handiwork that he also should rest from his usual vocation and calling one day out of every seven — that it is the law of nature and if violated it brings its own punishment. In our younger days we may labor every day in the week during the year, but experience has demonstrated it shortens the days of our life. Such constant work in one's usual vocation weakens the mental power, undermines the physical strength, and in the end destroys the faculties thus brought into constant use. The State has recognized this, and commanded that we cease our usual labor one day in seven, believing that we would remain vigorous men and women for a greater length of time, and there would be less insanity and invalidism. We believe this to be true, and we think our Legislature so thought in enacting this statute. For the same reason our child labor laws were passed, our laws which fix eight hours as a day of labor, etc. The Legislature did not mean in saying that theaters and moving picture shows should not operate on Sunday, as some seem to think, that they were immoral, no more than in saying that the dry goods merchant should not sell his goods on Sunday. They felt that the dry goods merchant, his clerks and employees *Page 370 needed the rest of one day in seven, and felt that the moving picture operator also needs this rest, that their days might be lengthened, and their mental and physical strength maintained to the end.
We are of the opinion that the facts show that appellant violated the law, and the trial court did not err in so holding.
The judgment is affirmed.
Affirmed.
[Rehearing denied June 16, 1915. — Reporter.]
July 19, 1915.