This case has heretofore been affirmed, with the late lamented Judge Davidson dissenting. The dissenting judge has long been held in high regard by the bench and bar of Texas. His profound knowledge of the law, his vigor of expression, and lovable traits as a man have been regarded by none with more loyal esteem than the writer. This has caused me to make close inspection of the record and an examination of the statutes and authorities reviewed and discussed in both the affirming and dissenting opinions. The conclusion has been reached that the majority opinion reflects the correct interpretation of the law. Considerable has been said as to the character of the picture exhibited on the screen upon the occasion complained of. That to be an "amusement" the picture depicted must only excite pleasurable emotions is to minimize the acting of the great dramatic artists not only upon the speaking stage but before the camera whose portrayal of the sorrows and tragedies of life has moved thousands to tears. Pictures which divert, entertain, instruct, or excite mirth would be as truly "other amusements" under the statute as a play upon the stage accomplishing these ends would be a theatrical performance. A person could be held for a violation of Article 302 P.C., under a charge for operating a theater on Sunday whether the performance was a tragedy, melodrama or comedy. One would be likewise guilty who operated a moving picture show on Sunday whether *Page 560 the screen depicted tragedy, melodrama or comedy. The picture in question portrayed some of the great tragedies of the war. The moving picture show of today is an evolution that perchance was not even dreamed of thirty-four years ago when Article 302 of the Penal Code was enacted, but the language of that article is broad enough to embrace them, and this court having so concluded, it is not within our province to except them from the operation of the law. Only the lawmaking body could do this if it saw proper.
The motion for rehearing is overruled.
Overruled.