
    Heigert v. The State.
    [No. 5,687.
    Filed October 26, 1905.
    Rehearing denied February 23, 1906.]
    1. Criminal Law. — Baseball.—Sunday.—Fee.—Where the management of a Sunday game of baseball charged fifteen cents for seats in the grandstand and ten cents for “bleachers,” there is a violation of law, thé claim that the fee was paid for the “seats” and not for the game being a subterfuge or-an attempt to evade the statute, p. 401.
    2. Same. — Baseball.—Sunday.—Fee.—Where a Sunday baseball game was not free and an admission was charged to some of the spectators, the law is violated, though some may witness such game without the payment of any fee. p. 401;
    Erom Hancock Circuit Court; Edward W. Felt, Judge.
    Prosecution by the State of Indiana against J ames Heigert. Erom a judgment of conviction, defendant appeals.
    
      Affirmed.
    
    
      Binford & Walicer, for appellant.
    
      Charles W. Miller, Attorney-General, W. C. Geahe, A. C. Van Duyn and C. L. Tyndall, for the State.
   Roby, J.

Appellant was charged by indictment and found guilty upon trial of having unlawfully engaged in playing a game of baseball, where an admission fee was charged and paid by the spectators, upon Sunday. §2087 Burns 1901, Acts 1885, p. 127; State v. Hogreiver (1899), 152 Ind. 652.

The evidence was to the effect that on September 11, 1904, said day being “the first day of the week, commonly called Sunday, the defendant, James Heigert, engaged in playing a game of baseball on the ball ground located at or near a park called Spring Lake Park, in Hancock county, State of Indiana. Said ground had been leased by Mrs. Jennie Colestock to a Mr. Matthews. Said ground was bounded on the north by the Spring Lake Park land, which was owned by Mr. Matthews. Said ground was bounded on the east, west and south by the lands of said Jennie Colestock. Said ground where said game was played had been scraped or leveled, and a baseball diamond made thereon, and at the northwest corner of the ground so prepared an amphitheater stood fronting eastward on the ball ground. Said amphitheater was provided with seats, and there was a roof over said seats to protect the occupants thereof from the sun and rain. Said amphitheater was entered from the north end thereof by means of steps. A short distance east of said amphitheater, and on the north side of said ground, seats had been constructed of boards without any covering over them, said seats being characterized as “bleachers.” Said seats fronted southward on the ball ground. A tight board fence extended east from the north end of said amphitheater, along the north side of said ground, to a point within forty feet of the east line of said ground. Said fence thence veered in a southeastwardly direction a very short distance, stopping before it reached the east line of said ground. Said fence was of such height that people on the north side thereof could not see the players in the game of ball on the south side thereof. There was a gate in said fence a little east of the amphitheater, and near said board seats or “bleachers.” At the east end of said fence people, by passing over other lands, could pass around and onto the ball ground, and view the ball ground and the game of' ball while it was being played, there being no fence on the east side of said ground. There was no fence on the south side of said ground, and the view from the west end of said ground was unobstructed, except the part along which the amphitheater fronted. A building used as a ticket office stood a little to the north of the amphitheater, and while said game of ball was being played tickets were sold at fifteen cents each, entitling the purchasers to occupy seats in the amphitheater, and tickets were also sold at ten cents each, entitling the purchasers to occupy seats on the “bleachers” east of the amphitheater. About four hundred seventy-nine tickets were sold for the amphitheater seats and about one hundred twenty tickets for the “bleacher” seats. The tickets sold for seats in the amphitheater were taken up at the entrance thereof as the purchasers passed in, and the tickets for the “bleachers” were taken up as the purchasers passed through the gate leading to said seats. Said seats so sold were occupied by the purchasers while the game of ball was being played. During the entire time said game was being played the view on the east and south sides of said ground was unobstructed, and the view was unobstructed on the west side of said ground, except the points along which the amphitheater extended, and persons desiring to see said game could do so at said points without paying any fee therefor. No attempt was made by the defendant or any person connected with the game to prohibit persons from seeing said game at said points, and no tickets were sold nor fee charged except the tickets sold for the seats in the amphitheater and for the seats on the “bleachers.” A great many people did witness said game of baseball from the east and south sides of said ground, and from points on the west side of said ground, said persons did not pay any fee for seeing said game, and no attempt was made by tbe defendant or any one connected with said game of ball to prevent them from seeing said game of ball.

Appellant’s propositions for reversal, raised by exceptions to instructions given and to the refusal to give instructions requested by him, are that the question of an admission fee’s being charged should not have been submitted to the jury. It is claimed that evidence showing the sale of seats is not supportive of the charge made, and that the offense does not exist if the game can be seen by spectators without being compelled to pay for so doing.

The eleventh instruction given was as follows: “In determining whether the fee paid, if any, was such as makes the defendant liable, you must determine from the evidence whether the fee so. paid was paid that the spectator might see the game of baseball, or simply for the purpose of having a seat, without any relation whatever to the game of baseball which was played, if any was so played. If the playing of the game of baseball was the inducement which led to the payment of a fee by spectators, if any did so pay, then any one engaged in playing a game of baseball on Sunday, as alleged in the indictment, is guilty under the statute.” The law concerns itself with substance rather than form. It does not tolerate subterfuge or evasions, and the evidence justified the court in submitting the question of fact to the jury, as was done.

The thirteenth instruction was as follows: “The fact that some may have seen the game in question without paying any fee, or that all could have seen the game without any fee whatever, will not relieve the defendant from liability in this case if you believe from the evidence, beyond a reasonable doubt, that the defendant played in the game, as alleged, on Sunday, and that some of the spectators paid a fee which was charged by the managers of the game in connection with the game of baseball so played.” It was sufficient to sbow that tbe exhibition was not free, and evidence of the payment of a fee by one or more persons is compétent proof of that fact; nor is it necessarily given a different character by the fact that some persons saw the game without paying therefor. State v. Hogreiver, supra.

Judgment affirmed.  