January Term, 1850. Christianity claimed to be a part of our common law. Keeping a grocery open on Sunday criminal. SUPREME COURT OF ARKANSAS. JANUARY TERM, 1850. SHOVER V. THE STATE.1 The Christian religion is recognized as constituting part of the com mon law; its institutions are entitled to profound respect, and may wel be protected by law. The Sabbath, properly called the Lord's day, is amongst the first and most sacred institutions of Christianity, and the act for the punish ment of Sabbath-breaking (Digest, chapter 51, part 7, article 5, page 369) is not in derogation of the liberty of conscience secured to the citi zen by the third section of the Declaration of Rights. In an indictment under the above act for keeping open a grocery on Sunday, it is not necessary to aver that it was kept open with any criminal intent - keeping it open on that day is the gist of the offense. When the fact of keeping the grocery open on the Sabbath is estab lished, the law presumes a criminal intent, and the defendant must excuse himself by showing that charity or necessity required it. Keeping a grocery door open on the Sabbath is a temptation to vice, and therefore criminal. In such an indictment it is not necessary to aver that the person charged with keeping open the grocery is the owner of it, but if alleged, it must be proven. Any person who has control of a grocery, may be indicted for keeping it open on Sunday, whether he be owner or not. APPEAL FROM THE HEMPSTEAD CIRCUIT COURT. MR. CHIEF JUSTICE JOHNSON delivered the opinion of the court. The indictment in this case is based upon the fifth section, chapter fifty-first, Digest. That section 15 English, 259. This decision and the State v. Ambs, post page 425, are inserted as representative of those upholding the constitutionality of Sunday laws. In the celebrated New York Supreme Court de cision on Sunday laws, Mr. Justice Allen says that "in most States the Sunday [Sunday ] legislation has been upheld by the courts and sustained by legislation well-reasoned and able opinions,"-citing these decisions among others, upheld by courts. as the leading decisions. It was originally intended to insert in this enacts that "Every person who shall, on Sunday, keep open any store, or retail any goods, wares, or merchandise, or keep open any dram-shop or grocery, or sell or retail any spirits or wine, shall be deemed. guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than ten dollars nor more than twenty." Arkansas Sunday law. Law objected to tional. Objection overruled. The court claims that the convention did not intend re The first objection taken is to the indictment, and is predicated upon the supposed unconstitutionality as unconstituof the act by which the offense is created. If the act is unauthorized by the Constitution, it must arise from the fact that it interferes with the rights of conscience which are secured by all the Declaration of Rights. A portion of those rights consists in a freedom to worship Almighty God according to the dictates of every one's conscience, and in not being compellable to attend, erect, or support, any place of worship, or to maintain any ministry against their consent. The act in question cannot, with any degree of propriety, be said to trench upon any one of the rights thus secured. By reserving to every individual the sacred and indefeasible rights of conscience, the convention most certainly did not intend to leave it in his power to do such acts as are civil in *themselves and necessarily calculated to bring into contempt the most venerable and sacred institutions of the country. Sunday, or the Sabbath, is properly and emphatically called the Lord's day, and is one amongst the first and most sacred institutions of the Christian religion. This system of religion is recogwork the New York decision also; but the New York Supreme Court not being a court of last resort, and as the decision itself would take about fifty pages, it is omitted. The decision is, however, probably the most able and exhaustive opinion presenting that view of the question. See 33 Barbour, 548-578. It is a noticeable fact that all of these decisions base the constitutionality of Sunday legislation upon the alleged fact that Christianity is a part of our common law, which, as shown in the Ohio Supreme Court decision (page 419) and elsewhere, is a fallacy. ligious equal[*263 ] ity for all. All institu tions in any with Christian ity, said to be entitled to state protection. nized as constituting a part and parcel of the common way connected law, and as such all the institutions growing out of it, or in any way connected with it, in case they shall not be found to interfere with the rights of conscience, are entitled to the most profound respect, and can rightfully claim the protection of the lawmaking power of the State. (See the case of Vidal et al. v. Gerard's Executors, 2 Howard's Reports, 198.) We think it will readily be conceded that the practice against which the act is directed, is a great and crying vice, and that, in view of its exceedingly deleterious effects upon the body politic, there cannot be a doubt that it falls appropriately under the cognizance of the law-making power. Gist of the offense. The indictment is believed to have been drawn with technical accuracy, and to contain all the averments necessary under the statute to a full description of the offense. The very gist of the offense charged in the first count is the keeping open the grocery on Sunday, and it was not necessary that any criminal intent should have been alleged; as, upon the finding of the fact charged, the law presumes the intent, and unless the defendant is prepared to show that no such intent existed as that it occurred in the exercise of acts of charity, or that, as a matter of necessity, he could not avoid it the offense will be fully made out, and consequently nothing can remain to be done but to fix the penalty. The nature and tendency of the act prohibited furnish ample reason why the Legislature did not expressly require the intent to be expressed in the indictment as constituting a material part of the description of the offense. The act of keeping open a grocery on Sunday, is not, in itself, innocent or vicious and de- even indifferent; but it is, on the contrary, highly vicious and demoralizing in its tendency, as it amounts to a general invitation to the community to Keeping open a grocery on Sunday said to be "highly moralizing." enter and indulge in the intoxicating cup, thereby If the objection to the first count be admissible as failing to give a full and perfect description of the of fense, we can perceive no good reason why it should not apply with equal force to the second, as it is silent also as to the intent. The charge in the latter count is, that the defendants sold spirits on Sunday, and it is wholly silent as to the intent with which the act was done. It certainly would not be contended that an indictment for selling spirits on Sunday should further aver that it was sold with intent to have it drunk. The Legislature did not conceive the act of selling to be any worse in point of criminality than that of keeping the grocery open, and consequently they have placed them both upon precisely the same footing. They have the unquestionable right, so long as they keep themselves within the pale of the Constitution, to command the performance of such acts as are right, and to prohibit such as they may conceive, In this decision the object of Sunday laws is forcibly expressed. The intention is to guard the sanctity of that day. And, although, as in this decision, the claim is made that "all the institutions growing out of," "or in any way connected with," the Christian religion, are entitled to state protection,- and this would include baptism, the Lord's supper, etc., as well as the so-called Lord's day, yet it is constantly denied that Sunday legislation is religious legislation. No matter how many Sabbatarians go to jail and have their property taken away in fines, still it is claimed that these laws are "civil regulations" for the preservation of the public health by keeping people from working too hard! From this decision it is plain that it is not the deed but the day on which the deed is done that determines the offense under Sunday laws. Not the act, but the disre gard of Sun day, that forms the head and front of the of fense." Charge in second count. Object of Sunday laws. Power of Legislature. Sufficiency of testimony. in their wisdom, to be wrong; and their right is equally indisputable to say whether the intention shall be preserved from the mere act prohibited, or whether, in addition to such act, the State shall also show the intent which prompted its commission. The next objection relates to the sufficiency of the testimony to warrant the conviction. It is manifest from the whole tenor of the evidence as exhibited by the bill of exceptions, that both parties, as well the State as the defendant, considered it essential to a conviction that the ownership of the grocery should have been proven before the jury. This the statute did not require; but, having unnecessarily averred the fact of ownership, it devolved upon the State to prove it in order to authorize a conviction. The act merely forbids the keeping of a grocery open on Sunday. It certainly cannot be material whether it shall be done by the party having the legal title, or [265) by any other *individual having the control of the establishment at the time of the commission of the alleged offense. If it were incumbent upon the State to show title to the grocery before a conviction could be had for keeping it open on Sunday, it would, in the very nature of things, be utterly impossible, in many cases, to effectuate the objects of the law. The true question, therefore, under the statute is not, Who is the owner of the grocery? but, Who is shown to have had the control of it at the time of the commission of the act? The State, in this case, did introduce some slight circumstances tending to establish the allegation of ownership, but utterly failed to prove that the defendant had been guilty of keeping the grocery open on Sunday. Judgment of the court. The judgment of the Circuit Court of Hempstead county is, therefore, reversed, and the cause remanded with instructions to proceed therein according to law, and not inconsistent with this opinion. |