The opinion
DAVIDSON, Presiding Judge
(dissenting). I do not propose writing in detail my reasons for this dissent. A mere reference to the statute and the construction placed on it by the majority opinion might be sufficient to show the erroneous conclusion reached by that opinion.
By express provision of articles 1 and 9 of the Penal Code, there can be no crime in Texas except it be declared by the Legislature in plain language. This, of course, must be by legislative enactment. This court can not by construction enact laws or create offenses. No one will question this proposition.
Now to the case in hand. Appellant was charged as “agent” and “employee” with permitting a place of public amusement to be opened on Sunday for public amusement. He was not charged as “proprietor.” The statute, article 199 of the Penal Code, in so far as it relates to this offense, will read, “The proprietor of any place of public amusement, or the agent or the employee of any such person who
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shall permit his place of >public amusement
to
be open for the purpose of public amusement on Sunday, shall be fined,” etc. This article fixes definitely the relation of the “proprietor,” the “agent” and the “employee,” and defines the circumstances under which each shall be guilty of violating it. This court has no authority to change these relations. That is legislative function, not judicial. The language of the statute is not ambiguous or doubtful. The “proprietor” sus-tains one relation to the offense denounced, while his “agent” or “employee” sustains a very different one. My brethren have confounded these relations and placed the parties in the same class. In order to do this they transposed the language of the statute so as to make it read: “The proprietor of any place of public amusement who shall permit his place of public' amusement to be open for the purpose of public amusement on Sunday, or the agent or employee of such person, shall be fined,” etc.
By this transposition of words a new statute is created by the court to stand in the stead of that enacted by the Legislature. The relations of the
parties—proprietor, agent and
employee—are completely changed and confounded, and the agent or employee made to suffer punishment if the “proprietor” permits his place of amusement to be opened on Sunday. This is a complete subversion of the definite language of the statute, and the “agent” and “employee” are thereby punishable for the acts of the proprietor. The theory of this transposition of language is to constitute the agent a principal and convict under the proposition that in misdemeanors all actors are guilty as principals. This rule does not apply to the statute under consideration as enacted by the Legislature. Where the Legislature fixes the status of parties to a given act, it must so remain. The courts can not change it. This is fully recognized in the constitutional division of powers. Article 3, section 1, of the Constitution. It is also adjudicated in this State. Mitchell v. State, 34 Texas Crim. Rep., 311 ; Flynn v. State, 35 Texas Crim. Rep., 220 ; Cook v. State, 42 Texas Crim. Rep., 539 ; Hamilton v. State, 60 S. W. Rep., 39 ; Strong v. State, 52 Texas Crim. Rep., 133 ; Carlton v. State, 51 S. W. Rep., 213 ; Sparks v. State, 51 S. W. Rep., 1120 ; Humphries v. State, 68 S. W. Rep., 681 ; Murray v. State, 21 Texas Crim. App., 620. But why multiply authorities ? The rule seems to be universal.
The Legislature (Thirty-Second) at its regular session refused to enact a statute embracing the identical matters construed by my brethren into article 199. See House Bill No. 497. It was recognized by that body that the statute (article 199) did not cover or embrace these matters, and to supply these omissions Bill Ho. 497 was introduced in the House. But it met with humiliating defeat at the hands of the committee, and the House thereby refused to pass it. My brethren have by their opinion made that a crime which the legislative department refused to denounce as a crime, and they have made criminal that which the lawmaking power declined to do, as
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the majority did by inserting moving picture shows in the same statute under the category of theaters in Ex parte Lingenfelter, decided at the present term. Thus another line of legislative opinions is inaugurated. Invasion of the powers, duties and authority of a coordinate branch of government by another coordinate branch is not to be indulged nor tolerated. If the Legislature desires to create new. offenses, it is with it to do so. It is not the province of this court so to do.
I respectfully dissent.