Appellant was convicted under Article 302 P.C. for exhibiting a moving picture show performance on Sunday.
That statute has been before this court in several cases, notably Ex parte Lingenfelter, 64 Tex.Crim. Rep.; Zucarro v. State, 82 Tex.Crim. Rep.; also Ex parte Roquemore,60 Tex. Crim. 282. What I shall have to say will be mainly from the standpoint of majority opinions in the adjudicated cases cited. In the Roquemore case, an opinion by Judge Ramsey, it was held that a base ball game was not within the inhibition of Article 302 P.C., because not similar in nature and character to a theatrical performance, variety show or circus. That decision rested on the rule of ejusdem generis. All subsequent cases have been decided under that view of the law. It must, therefore, be a place of amusement or an "amusement" such as denounced by the statute under those cases. This necessarily involved a question of fact as to whether the exhibitions were of a similar nature to a theatre, variety show or circus. Zucarro v. State, supra. If that rule was not correctly applied, those decisions are bottomed on a wrong basis and are incorrect. If the facts do not bring the case within that rule, the exhibition is not within the term "such other amusements." Under the statute necessarily the picture exhibited must be one of "amusement." The language which forms the basis of such prosecution is as follows: ". . . or permit his place of business or place of amusement to be open for the purpose of traffic or public amusement on Sunday. . . . The term `place of public amusement' shall be construed to mean circuses, theaters, variety theaters, and such other amusementsas are exhibited and for which an admission fee is charged." The language "and such other amusements as *Page 556 are exhibited and for which an admission fee is charged" gives character to and are descriptive of the places of "public amusement."
Therefore, under the decisions it becomes a question of fact as to whether the exhibition is one of "amusement." If so the decisions hold it must be one similar in character to those exhibited in theaters, variety shows and circuses. From any view point the exhibition must be one of "amusement." Moving pictures are not theaters, variety show or circus. It can only be pantomime. They are but imitations of the real thing sought to be exhibited. If the picture exhibited is not an imitation of either class, the State's case fails. In this case the State did not but refused to prove the character of exhibition, the picture thrown upon the screen. It devolves upon the State to bring the picture within the rule announced by the statute. It must be an "amusement." The defendant urged that the State must do so, and failing he was entitled to a verdict of not guilty. This was overruled. The State relied only upon the fact that the house was open, an exhibition had, and a fee for admission charged, without any evidence as to the character of the picture exhibited.
When the State closed its testimony appellant asked that the jury be instructed to find him not guilty. This charge was presented and refused. The charge should have been given. Exparte Lingenfelter, 64 Tex.Crim. Rep.; Zucarro v. State,81 Tex. Crim. 1, and Roquemore case, 60 Tex. Crim. 252. There are other cases. Appellant then proved as far as permitted by the court what the picture was and its characteristics. He had written out a full description of the picture exhibited. This was offered by appellant, but the court refused to permit him to adduce it in evidence. He was permitted, however, to give orally a description of the pictures exhibited. Exception was reserved. The writer is of opinion that this should have gone to the jury as it would have conveyed to them a clearer and more accurate idea of the picture. Under the witness' testimony the picture exhibited was shown to be neither a theater, variety show nor a circus, nor an imitation of either. It bore no resemblance to either. An instructed verdict was then asked but refused. This the writer thinks should have been granted under the cases cited.
Appellant's testimony shows that when the United States entered the great world-wide war the government established a commission on public information, placing official photographers on the battle lines and on transports carrying soldiers from the United States to France and Europe; also at the munition factories, Red Cross work, the various victory loan drives and other things pertaining to the activities of that war. Mr. George Creel was made chairman of this commission. Members of this commission were Secretary of Navy, Secretary of War and Secretary of State, Mr. Daniels, Mr. Baker and Mr. Lansing respectively. There was a series of these pictures by command of the commission. These pictures were to be used as long as necessary for war and patriotic purposes. The first picture was entitled "Pershings *Page 557 Crusaders." It was exhibited by appellant in his place of business in Austin. The picture showed various army camps where soldiers were being trained, getting supplies, shoes, clothing and kindred matters of preparation to put our boys in readiness for service.
The next picture in the series was entitled "America's Answer." It showed docks built in France by America and progress in such building at the time that picture was taken and used.
Another picture was entitled "Under Four Flags." This was the particular picture on exhibition on the Sunday appellant was arrested, and which exhibition forms the basis of this conviction. The testimony in regard to this picture "Under Four Flags" is about as follows: It showed the transporting of soldiers across the ocean to Europe, such as convoys, smoke screens, use of depth bombs, the sinking of a German submarine; it showed actions along the battle front in the actual activities of battle, the aviation movements and fights in the air, the bringing down of German airplanes; it showed the victors and vanquished, meeting of allied generals at Versailles, the selection and appointment of General Foch as supreme commander, the conferences between the commanding generals of the great armies engaged in the war; it showed tanks in action, in actual battle; it showed armies in actual battle, the American boys going over the top; it showed the big guns in action of all the allies, American, French and Italian. It showed wounded soldiers at the battle front of the allied forces all along that terrific battle line strife; the workings of the Red Cross, and the ambulance and ambulance corps. It showed the actual occurring scenes taken at the battle front; it showed the Red Cross in action and the Salvation Army engaged in taking care of the wounded and feeding the hungry, and their attention to the American boys in their mission of mercy. It showed the Y.M.C.A. huts; it showed the victorious advance of the allied armies as they swept through the German fortifications, across their trenches and over the top. It showed French refugees, men, women and children seeking refuge and safety behind the allied lines. It showed the battle of Chateau Thierry from photographs taken on the ground. It showed the battle scenes on the Italian front as they actually occurred. It portrayed only actual occurrences as they took place, exhibiting all the horrors of millions of men engaged along the greatest battle lines in the world's history, with all its gruesome destruction, death and desolation. These pictures were taken by the official photographers not only of the United States but the four nations constituting the allied armies. These were exhibitions of actual battles of war. It was not the stage action of plays or imitation of theatrical playing, nor exhibitions of vaudeville or variety shows or theaters, nor the display and movements and clown actions of a circus. It showed pictures officially ordered, endorsed and exhibited to arouse our national life to the emergencies of the great death struggle in which our country was engaged to preserve our republican form of government. The country was in the stress of war *Page 558 which involved its life and its government, and these pictures were exhibited all over our country by the authority if not by the command of the government, as a war measure. It cannot be said that these high officials would order all this as all "amusement." The movement and exhibitions were for another and different purpose. There was behind it the highest possible patriotic emotions and motives for the purpose of bringing before our people more clearly incidents of that terrific war struggle, and to awaken stronger interest by portraying to them visibly on the screens the tragic events along the battle lines, and a realization of the fearful ordeals through which their relatives, sons, brothers, husbands and friends were passing. It was an official appeal to patriotic Americans. "Under Four Flags" was not a theatrical play, a variety vaudeville exhibition nor was it a circus performance. It was the exhibition of scenes of battle, death and desolation. It would be worse than vain and more than useless to undertake to impress the mother who had given her son, and the wife her husband, and the sister her brother, to fall at Chateau Thierry, to die at St. Michel, or fill a soldier's grave in the Argonne Forest, with the idea that the portrayal of such tragedies and death scenes from German shot and shells constituted "a place of amusement." It would be impossible to conceive anything more obnoxious to any conception of amusement than such gruesome exhibitions. It is abhorent to any sense of humor to call such exhibitions "amusements." The writer is of opinion that this picture can not be brought within the Lingenfelter case and that line of cases. The facts do not so disclose but disprove. The question of morals from the standpoint of public power is not involved and can not be. Under Article 1509 P.C., immoral pictures can not be exhibited anywhere at any time, Sunday or other day of the week. They are forbidden and cannot be exhibited under any character of regulation, whether it be on Sunday or Monday. The writer is of opinion that Articles 1480, 1481, 1482 and 1483 can not aid in supporting this conviction. Those articles are intended to regulate exhibitions in places of amusement and houses or places where the exhibitions occur. They have the same reference to Sunday exhibitions as to those on other days of the week. If it be held to impair Article 302 and change its terms, then to that extent the conflict would repeal Article 302, because of their later enactment. If in those places exhibitions could occur on Sunday, these articles would regulate their exhibition as prescribed therein. If they repeal Article 302 and thereby permit Sunday picture shows, this case, of course, should be reversed, because under that view those articles would justify the exhibitions on Sunday, subject to specified regulations.
There are other questions which I shall not discuss. I have said this much because I am of opinion that if the decisions heretofore announced are correct, this case does not come within their purview, and this conviction cannot be sustained by them. The court should have charged an acquittal, or should have given the charge asked by appellant. *Page 559 These matters are properly urged and presented to the trial court. Under no decision yet rendered could this exhibition come within the statute, whether the rule of ejusdem generis be applied, or the place be held a "place of amusement" independent of the rule of ejusdem generis. The statute in either event can only apply when "amusements" are exhibited. This court is not authorized to include in the statute places or things other than those specified as "amusements." If the thing exhibited is not included in the term "amusements" it is not within the statute. It depends upon the facts, and it must be "clearly, I think, amusements of a like or similar character." Zucarro v. State, 82 Texas Crim. Rep., p. 4. The facts here do not bring the picture within the rule of "like or similar character" as theater, variety show or circus. As I understand Judge Lattimore's opinion it overrules all previous cases rendered since and inclusive of the Roquemore case, and announces the proposition that any place of public amusement where fees are charged is included in the statute, Article 302 P.C., without reference to the character of the exhibition.
I respectfully dissent from the decision.
ON REHEARING. February 23, 1921.