
    EALEY v. STATE.
    (No. 5828.)
    (Court of Criminal Appeals of Texas.
    June 23, 1920.
    On Motion for Rehearing, Oct. 13, 1920.)
    1. Criminal law <®=>1171 (I) — Improper argument of prosecuting attorney harmless in view of evidence.
    Improper argument of prosecuting attorney, which the court told the jury to disregard, was harmless; there being sufficient evidence of guilt and nothing to the contrary. ■
    On Motion for Rehearing..
    2. Criminal law @=>1173(5) — Failure to charge on accomplice testimony not error, where accomplice’s testimony is not favorable to state.
    ■Where testimony of an accomplice is not favorable to the state, it is not error to fail or to refuse to charge on such testimony.
    3. Sunday @=o6( I) — -Complaint charging keeping open theater on Sunday good.
    There is no merit in motion to quash a complaint, on the ground that the Sunday law does not apply to moving picture shows; the charge being of keeping open on Sunday a place of amusement, to wit, a theater, an act expressly forbidden by such statute.
    4. Sunday @=>29(1) — Complaint charging defendant as agent of proprietor with keeping open theater on Sunday,good.
    It is no ground for quashing a complaint, for keeping open on Sunday a place of amusement, that it charges defendant as being the agent or employé of the proprietor; Pen. Code 1911, art. 302, expressly making the agent or employé criminally liable when he opens or keeps open such place.
    5. Sunday @=30(l)-?Criminai complaint valid though tiled on Sunday.
    That the complaint was filed on Sunday is not ground for quashing it.
    6. Indictment, and information @=o39— Complaint properly taken before assistant county ■ attorney.
    Por a complaint to be taken before the assistant county attorney, without reference being made to the county attorney, is, under Vernon’s Ann. Code Cr. Proc. 1916, art. 34, proper practice.
    Appeal from Wichita County Court; J. P. Jones, Judge.
    J. M. Ealey was convicted of violation of the Sunday law, and he appeals.
    Affirmed.
    C. C. McDonald, of Wichita, and Mathis & Caldwell, Heyser, Hicks & Wilson, and Harvey Harris, all of Wichita Falls, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Wichita county, of keeping open a moving picture show on Sunday, and fined $50. Practically every question of interest in this case has been discussed and settled by prior holdings of this court, with which the writer agrees as far as is necessary to any decision upon the facts, of the instant case. See Zucarro v. State, 82 Tex. Cr. R. 1, 197 S. W. 982, L. R. A. 1918B, 354; Ex parte Lingenfelter, 64 Tex. Cr. R. 30, 142 S. W. 555.

An ordinary moving picture show was kept open on Sunday, in entire violation of the forbiddance of the statute laws of this state. Pen. Code 1911, art. 302. Appellant operated the reel by which the films were projected upon the canvas. One Pois .owned the show, and was present, directing and managing it in general. Appellant was in the employ of Pois during the week, but on Sunday was acting as a member of the International Alliance of Theatrical Stage Employés and Motion Picture Machine Operators of the United States and Canada. It seems that this concern made some character of agreement with the moving picture show proprietors, and sent to each show" on Sundays a man to operate its reel. The evident intent of such an arrangement was to thereby attempt to evade the law. Appellant was the employé of Pois, fibie owner, and was liable. Several special charges were asked, but we see no error in the trial court’s action in refusing the same.

The complaint of the language of the prosecuting attorney is without merit. The argument was manifestly improper, but the trial court at once instructed the jury not 1o consider such remarks. If there was any doubt as to the evidence not sufficiently supporting the verdict, the question might be different. Nothing appears in the record save every evidence of a flagrant effort to trample on the law.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed his motion for rehearing herein, urging that it was error for the trial court to refuse a special charge asked, telling the jury that one Pois was an accomplice, and that a conviction could not be had upon his testimony alone, etc.

On the trial of the case appellant voluntarily took the stand as a witness in his own behalf, and testified that the picture show in question was open for business on the Sunday charged, and that he operated the motion picture machine therein; that in so doing he was following the instructions of his union; that when he got to the show on that day, Pois, the owner, was not there; that he, appellant, went ahead and prepared to open the show, fixed everything, put his reels in, and then ran them during the time the show was open; that he donated his services; that he did not discuss the matter at all, nor have any understanding with Mr. Pois. Other witnesses testified, without contradiction, that the show was open for business on the Sunday in question, and that appellant was there operating the machine. The witness Pois was in fact introduced by the state, but an examination of his testimony discloses that he denied that appellant helped run the show on the day in question. He further stated that appellant donated his services; that he (Pois) did not have appellant there that' day; that he just came down of his own accord; that appellant had nothing to do with selling tickets or opening the doors of the theater, or taking in money, and that he paid appellant nothing that day; that he did not authorize him to open the doors, and that what appellant did was without any understanding. The testimony of appellant was much more favorable to the state than that of Pois.

The general holding in this state is that where the testimony of an accomplice is not favorable to the state, it is not error to fail or refuse to charge on such testimony. Mosely v. State, 36 Tex. Cr. R. 580, 37 S. W. 736, 38 S. W. 197; Waggoner v. State, 35 Tex. Cr. R. 201, 32 S. W. 896; Matkins v. State, 33 Tex. Cr. R. 605, 28 S. W. 536.

The record makes it clear that no contest was made in the trial court, and none is here made of the fact that the picture show was operated on the Sunday in question, and that appellant operated the machine in same. The refusal of the requested charge was not error under the facts of this case. Bailey v. State, 150 S. W. 915; article 743, Vernon’s C. C. P., and authorities.

Appellant urges, further, that we did not discuss in our opinion his motion to quash the- complaint. Said motion contains four grounds: First, that the complaint was bad, because the Sunday law did not apply to moving picture shows. The complaint charged appellant with keeping open on Sunday a place of public amusement, to wit, a theater. Such act is expressly forbidden by our statute. There is nothing in this contention. The second ground of the motion was that the complaint charged appellant as being the agent or employs of the proprietor. Article 302 of our Penal Code expressly makes the agent or employs criminally liable when he opens or keeps open such place of business on Sunday. The third ground of the motion is that the complaint was filed on Sunday. There is nothing in this. Lindsay v. State, 39 Tex. Cr. R. 468, 46 S. W. 1045. The fourth and last ground of the motion is that the complaint was taken before the assistant county attorney, without reference being made to the county attorney. This is the proper practice. Dane v. State, 36 Tex. Cr. R. 86, 35 S. W. 661; Kelley v. State, 36 Tex. Cr. R. 481, 38 S. W. 39; article 34, Vernon’s C. C. P., and authorities.

Being unable to agree to any of the contentions made by appellant in his said motion for rehearing, the motion will be overruled. 
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