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W. L. GELLING v. STATE (01/30/52)

decided: January 30, 1952.


Unlawfully Exhibiting Picture Show. Appeal from county court of Harrison County; fine of $200.00. Hon. R. M. Nichols, Judge Presiding.


Robert H. Park, Beaumont, and Philip J. O'Brien, Jr., and Herbert Wechsler, both of New York, N.Y. for appellant.

Gaines Baldwin, City Attorney, Marshall; Price Daniel, Attorney General of Texas; E. Jacobson, Assistant Attorney General, and George P. Blackburn, State's Attorney, all of Austin, for the state.

Beauchamp, Judge.

Author: Beauchamp

[ 157 Tex. Crim. Page 517]

    Appellant was tried in the county court of Harrison County on October 24th, 1950, and was found guilty by a jury which assessed a fine of $200.00 on a complaint charging him with unlawfully exhibiting a motion picture contrary to an ordianace of the city of Marshall. The case was tried de novo on appeal from the corporation court. The facts show that he exhibited a picture that was objectionable to the duly appointed board of censors of the city of Marshall, after they had notified him of their disapproval of the picture and instructed him not to exhibit the same.

The facts of the case are without dispute. The name and character of the picture exhibited are immaterial. The objection which was lodged against the picture by the board of censors is immaterial to the discussion of this case, because it is not claimed that they abused the discretion lodged in them, but the contention is made that the ordinance was invalid and the reasons relied upon are the basis for this opinion.

This case was submitted before this court some months ago and has been on the desk of the writer and has been examined by other judges of the court, through that period of time, at permissible intervals. The questions raised have required and received extensive investigation, but the importance of other cases on a crowded docket have superseded the questions in this case in the matter of final decision. Hence the delay.

There are certain questions involving the regularity of the passage of the ordinance, but the only questions that we will discuss to any extent involve the application of the First and Fourteenth Amendments to the Constitution of the United States.

[ 157 Tex. Crim. Page 518]

    The attorneys on both sides have filed extensive briefs which have been very helpful in coming to a conclusion on the questions raised. Much of the discussion in appellant's brief has been along the line of contentions made in other cases which have been before several courts in recent years and may be denominated as an eloquent plea that this court overrule the holding of the Supreme Court of the United States in Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230, decided in 1915. After careful consideration of this case and many of the cases which have followed and referred to it, particularly those cited by appellant, we have come to the conclusion that the most logical and positively correct expression is found in the case of RD-DR Corporation, et al v. Smith, et al, 183 Fed. 2d 562, opinion by Chief Judge Hutcheson of the U.S. Court of Appeals, New Orleans. Having so concluded, we content ourselves with following that opinion after first stating some of the contentions made in appellant's brief. The brief reviews the evidence of appellant and calls attention to his statement that the picture involved had been reviewed by both Life and Look, magazines that are sold and distributed in Marshall. Apparently the position is that since this was done there is no point in barring the picture, regardless of what it may be. The position is taken, further, that the motion picture, to the extent that it partakes of the features of the magazines in the field of entertainment and education, is entitled to the same protection as the press and entitled to the same freedom. On the subject and in behalf of this position, I doubt if we could find or that there may be presented a stronger argument than that in appellant's brief. Most of it has been discussed and referred to in other reported cases, but there is one feature that especially attracts our attention as being new and different. The extent of the investment in the show houses and in equipment and fixtures approximate $100,000, which is a substantial investment in property and building. The thought is that this investment indicates a permanence and removes a fear discoverable in the Mutual case as to the responsibility of the exhibitors. An examination of the Mutual case does not impress us that the court was moved to any degree by such a fear. Even in 1915 the position of the motion picture seems to have been well established. Further answer to the interesting discussion on this subject is not called for.

Neither do we find in the reported cases "that there is an indication" in recent Supreme Court ...

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