
    Crawford v. City of Pascagoula.
    [85 South. 181,
    In Banc.
    No. 21244.]
    Sunday. Law prohibiting showing of “plays of any hind” forbids a showing of moving pictures for an admission.
    
    Section 1368, Code of 1906 (section 1104, Hemingway’s Code), prohibiting the exhibiting, showing forth, etc., of “any interludes, farces, or plays of any kind,” etc., includes showing by means of moving pictures where an admission fee is charged. The purpose of the statute was to prevent all kinds of shows, plays, and amusements that tend to profane the Sabbath.
    Appeal from circuit court of Jackson county.
    Hon. D. M. Graham, Judge.
    C. Y. Crawford was convicted of operating a moving picture show on Sunday, for an admission, in the city of Pascagoula, and he appeals.
    Affirmed.
    
      
      Denny & Heidelberg, for appellant.
    As stated in the statement of facts, this ease hangs and depends upon whether or not section 1368, Code 1906, section 1104, Hemingway’s Code, can be construed to include what is known in this day and generation as a moving picture show. Said section is found to be in the following words: “Sabbath, Farces, Plays, Games. —If any person shall engage in, show forth, exhibit, .act, represent, perform or cause to be shown forth, acted, represented or performed, any interludes, farces, or plays of any kind or any games, tricks, ball-playing of any kind, juggling, sleight of hand, or feats of dexterity, agility of body, or any bear baiting or any bull fighting, horse racing or cock-fighting or any such like show ' or exhibit whatsoever, on Sunday, every person so offending shall be fined nor more than fifty dollars.”
    The above section with but two slight amendments has been brought forward from all the codes since Hutchinson’s (See chapter 64, section 7, article 4, Hutchinson’s Code) about the only amendments of the same has been to add' the, words “ball-playing” and. an increase in the penalty provided for its violation. Code 1857, article 227, page 6091, Crimes'and Misdemeanors; Code 1,871, section 2681; Code 1880; section no. 2951; Code 1892; section 12931
    Does this section cover or include within its scope what the world now knows as a moving picture show. Tf it does it must do so under and by virtue of the doctrine of ejusdem generis. The statute does not contain the word “picture show” or any kindred term, the nearest approach to such words are the words “or any such like show” and this wording extends many years' back as will be found by a 'reading of the statute. 36 Cye., page 1120, in discussing the doctrine of ejusdem generis says: “the words ‘other’ or ‘any other’ fob lowing an enumeration of particular classes are therefore to he read as ‘other such like’ and to include only others of like kind or character.”
    W:e have been unable to find any statute of other states that is similar in wording exactly to the Mississippi statute in question, yet in the case of R. G. W. Hull, 110 Pacific, 30 L. B. A. 465 (N. S.), it wasi held that: “In order to bring a public amusement not specifically enumerated by the statute under the general language of any such place of public amusement the likeness or similarity must exist in something other than the fact that it is a public amusement and must, in a general way, correspond to the amusement specified. Again, in the case of State v. Penny, 111 Pacific 727, 31 L. B- A. (N. S.), 1155, in construing a statute in the following words, “every person who on Sunday, or the first day of the week, keeps open or maintains, or aids in keeping open or maintaining, any theatre, playhouse, dance house, race track, gambling house, concert saloon, or variety hall is guilty of a misdemeanor. The court in this case held that the operation of a moving picture show was not within the meaning of the statute.
    Again, the statute under which the defendant was tried and convicted in the case at bar is one of ancient history in Mississippi, so to speak. In its present form it has been brought forward unchanged from the Code of 1892 and with but little change before that time; the Code of 1892 adding the words “ball playing” over and above what was contained therein. By the Code of 1880, Games were mentionéd in the act or statute prior thereto, but yet the legislature, it seems, recognizing the principle that new thing's must fbo considered, added the words “ball playing'” and this was done about the time base ball begun to make its appearance in this state to any appreciable extent. A moving picture is not an interludé, farce or play. In the picture the actors are not present upon the stage; in fact they may he at the antipodes at the time the picture is flashed upon the canvas in any town that has arrived at the dignity of maintaining a picture show. It is the scene alone that is flashed upon the canvas and at the time of the placing of the statute in question upon the statute books of the state of Mississippi the moving picture machine was unknown and probably undreamed of, at least by the members of the legislature who framed the statute.
    In the case of State v. Nashville Baseball Association, reported in the. .211 S. W. 257, 4 A. L. R. 368, the supreme court of the state of Tennessee says, quoting the syllabus: “statute prohibiting the playing of any game of sport on Sunday does not apply to. the subsequently invented game of base ball. To'the same effect is the case of Ex Parte Neet, 157 Mo. 527, 80 A. St. R. 638; see, also, State v. Prather, 79i Kans. 513, 21 L. R. A. (N. S.), 2131, 1311 A. St. R. 689; 100 Pac. 57.
    New York sítate, it seems, had had the question up, not upon a similar statute to ours, but something akin to it, and while it seems that the courts of that state at one time departed from the rule that a moving picture was not in the nature of a theatre or play, yet the later decision seems to indicate that the courts of that state are going* back on their original position that a moving picture show is not a theatre play, or such an exhibition as is condemned or falls within the prohibition of our statute. See People v. Ilemle, 111 N. Y. Supp. 690 ; Amusement Go. v. McClelland, 62’ Mise. 100 N. Y. SupC 594; Edwards v. McClelland, 118 N. Y. Supp. 181; State v. Chamberlain (Minn.), 127 N. W. 444.
    Times have and are changing; old statutes! must either be rewritten or new ones enacted to cover the various changes in the times, and until the legislature of our state sees fit to include moving pictures or the reproduction, of them upon a screen or canvas upon Sunday, we contend that there is, so far at least as the section under controversy is concerned, no statute against exhibiting- them upon Sunday.
    Again, criminal statutes are to always be strictly construed; and we submit that it would require a very liberal construction of the statute in question here to include within the things prohibited by it or by any inference it prohibits, something that was invented or started years after the statute was enacted and passed by the legislature in its present form.
    
      E. B. Everitt, for appellee.
    Tins old statute of Mississippi, that is just about as old as the state itself, for the enforcement of the Sabbath day observance that was then conceived to be wholesome for the moral and religious growth of the community, makes use of language broad and comprehensive in meaning. We were then intimately conversant' with the great '.variety of entertainment known as plays, as were the immortal fruits of the greatest of play-writers, Shakespeare, whose writings were known as plays, dramatized into performances known as plays and out of which popular class of entertainment sprang up a great, variety of play performances. Hence we find the legal definition of plays to be “dramatic composition for scenic representation by speaking or acting as a tragedy, comedy, farce, “melodrama or panto-mine. 30 Cyc. 1643'. Now a theatre is a kind of play. 38 Cyc., 253. A farce is a certain type of play. 19 Cyc., 453. Pantomine is a dmnb show (Wjsbster) and is connected with and as part of these plays and entertainments we have what is called the tableaux, or living picture. All these are easily comprehended by the old word “play” as used in this old statute in this state.
    
      Having in mind, therefore, this old word “play” how shall we, under the rule of ejmdem generis, meaning* literally, of the same kind or species, how may we classify a picture show. With the aid of judicial knowledge we know this now common performance as a. trick of art giving living attributes to the shadow of a live show, acting a tragedy, comedy, farce, melodrama, pantomine or tableaux, as the case may be, resulting in the scenic representation by acting and by printed words. The scenic effect, the acting* and representation of assumed characters, the showing forth of a, tragedy and a play is the same as in the living act to all intents and purposes. In neither case is the public entertained by things that are real, but only by representation and reproduction with appeal to the imagination:
    The courts of New York have construed the language of penal code of the state prohibiting “public sport, exercise or show” to include moving pictures. Moore v. Owen, 58- Miso. (N. Y.) 330, 102 N. Y. 585, and several o'ther decisions as cited by 37 Cyc., 551, note 23. Later cases in that state have drawn a distinction between pictures illustrating lecturers and thingsi of like nature and pictures shown by means of slot machine. Certainly it is not every picture exhibition performance or entertainment that is a play or show just as it is not always shown when living characters perform on the stage.
    The character of the performance, is just as distinct in the one as in the other. lienee it is that the state of facts upon which this case was tried is important in bringing this performance as coming* under the statute of this state and within the language of the affidavit as a play or farce.
    Counsel has cited a number of oases and so far as I have examined those cases only one of them was at all in point, holding that a picture show was not a theatre within the language of the statute of that state and I believe that was the case of State v. Penny, 111 Pac., but whichi case I have not before me at present. My recollection of the case is that the court indulged in much unnecessary comment and indulged in reasons for the conclusion that was far-fetched and illogical that I feel sure this court will not feel constrained to give weight to that decision in construing 'our statute. For instance the court made the argument that the reasons for prohibiting the one did not apply to the other, particularly in the matter of the moral effect, and a police regulation against the theatre on Sunday as against public morals did not apply to a picture show, as the law should protect the public morals on Sunday and not on other days of the week, and much other argument of the same kind. The well known reason for regulating the observance of the Sabbath day has a general reference to the moral good by the enforcement of a day of rest, quiet and repose, and the protection of those who desire to engage in religious worship by acts that are unbecoming and calculated to disturb and detract. The language of the code as aided by its observance and accepted meaning in this state clearly contemplates the suppression of worldly entertainments presented as a matter of business and for money, a.t playhouses and places established in almost every community, of which the moving picture presentation of plays in all the different varieties is a familiar example. This form of show may not, in some instances, exert as bad effect on the public morals as the presentation of the same show by living creatures would exert, but it is a well known fact that in this line, catering to the' lowest tastes and passions of the public, the moving picture show has been given the last touches of diabolical conception. If closing entertainments of this kind on the Sabbath day that come within the language of this statute, as they were known in the days of itsi adoption, was a matter of any material importance to the state, and its more modern expression is not reached, then the old statute has lived beyond its day and generation and its day of usefulness, and might as well be repealed.
   Ethridge, J.,

delivered the opinion of the court.

The appellant was convicted under section 1368, Code of 3906 (section 1104, Hemingway’s Code), for operating a moving picture show on Sunday and charging admission therefor. This section reads as follows: .

“If any person shall engage in, show forth, exhibit, act, represent, perform, or cause to be shown forth, acted, represented, or performed, any interludes, farcesi, or plays of any hind, or any games, tricks, ball playing of any kind, juggling, sleight of hand, or feats of dexterity, agility of body, or any bear baiting or any bull fighting, hórse-racing, or cock fighting, or any such like show or exhibit whatsoever, on Sunday, every person so offending shall be fined not more than fifty dollars.”

There was an agreement in the record that the appellant operated a moving picture show on Sunday, and charged an admission fee to all persons entering, .that he had paid the license required on the business, and that the picture, exhibited on the day in question was entitled The Weaker Vessel, being a comedy and drama, and also a film entitled News Weekly, showing views of different parts of the world’s current events. It was agreed that these pictures were moral, and the ■ question presented for decision is whether the theater, exhibiting plays and dramas by means of moving pictures, come within the terms of the statute above set out.

It will be noted that the language of the statute is broad and comprehensive, and we think the moving picture reproduction comes within the purview of the statute. The language “or plays of any kind,” following the words “show forth, exhibit, act, represent, perform, or cause to be shown forth, acted, represented, or performed, any interludes, farces,” is sufficient to include the show herein described. The purpose of the statute was to prevent all business of the kind here involved, and others, which have a tendency to profane the Sabbath.

The judgment of the court below will therefore be affirmed.

Affirfned.  