Opinion
No. 13575.
Delivered June 25, 1930.
1. — Moving Picture Show — Operating on Sunday — Agency.
Since in the complaint and information it is alleged that appellant was agent, etc. it was necessary to prove the fact as alleged.
2. — Sunday Law — Moving Picture Show — Complaint and Information.
The complaint and information are fatally defective in that appellant is charged to be acting as "agent or employee," and the principal or proprietor is not named.
Appeal from the Collin County Court. Tried below before the Hon. E. W. Merritt, Judge.
Appeal from a conviction for operating a motion picture show on Sunday; penalty, a fine of $50.00.
The opinion states the case.
John D. Reese, of McKinney, for appellant.
A. A. Dawson, State's Attorney, of Austin, for the State.
The offense is operating a moving picture show on Sunday; the punishment, a fine of fifty dollars.
It was alleged in the complaint and information that appellants were "proprietor, agent and employee of a place of public amusement," etc., which was kept open on Sunday and for admission to which a fee was charged.
There is no evidence in the record supporting the allegation that appellants were the proprietors of the picture show. On the contrary, the state's testimony shows that said parties were agents and not proprietors.
The complaint and information are defective in that in undertaking to charge appellants as "agent or employee" the principal or proprietor is not named. It was incumbent upon the state to name the principal or proprietor, or, if such party was not known, to so allege. Roy Brockman et al. v. The State, Opinion No. 13,455, delivered May 21, 1930.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.