Minter v. State

Jul 19, 1898
Reporters:
, ,
Before:
Fish

Lead Opinion

Fish, J.

1. Was the demurrer to the presentment properly overruled? It charged that the accused, “by cursing and using profane and obscene language, and by being intoxicated, •and by fighting, and by loud talking, and by . . otherwise indecently acting, did interrupt and disturb a congregation of persons . . lawfully assembled for divine service,” etc. With the exception of the charge of fighting, the language of the presentment is in the terms of the statute. Penal Code, §418. “On the general principles of common-law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is.” Whart. Cr. PI. & P. § 220. The terms of the statute upon which this presentment is founded so distinctly individuate the offense which it defines, that the use of such terms in charging the offense in the presentment sufficiently notified the accused of what he was called upon to answer. The gist of the offense is the disturbance of a congregation lawfully assembled for divine service; and the manner and means, or the particular acts, by which the disturbance of such congregation may be effected are set out in the statute; and a general allegation that the disturbance was caused by such acts is all that is necessary, without entering into details. 7 Enc. PI. & Pr. 41 and 42. Section 427 of the Penal Code *749provides that “ any person who shall willfully interrupt any public school,” etc. In Huffman v. State, 96 Ga. 469, the record of file in this court shows that the indictment charged that-Huffman, “ did by cursing and quarrelling and fighting and discharging a loaded pistol, and by boisterous conduct and by otherwise indecently acting, willfully interrupt and disturb an assemblage of the public school,” etc.; that a special demurrer was filed to the indictment as to all allegations contained in the specifications therein, except the charge of discharging a, loaded pistol, on the ground that the charges wrere not definite and specific enough to put him on notice of the evidence to be introduced under them. The demurrer was overruled, the accused excepted, and this court held that the indictment sufficiently described the mode of interruption or disturbance, and that under such indictment evidence was admissible which tended to establish the charge. In State v. Ratliff, 10 Ark. (5 English), 530, it was held that in an indictment for disturbing a religious congregation by profanely swearing, it was not-necessary to charge the particular language used by the accused that the disturbance of the congregation -was the gist of the offense, and the profane swearing alleged was the means of disturbance, and hence the particular language employed by the-offender was not material, and need not be alleged. This ruling was followed in State v. Minyard, 12 Ark. (7 English), 156, and State v. Hinson, 31 Ark. 638. In Thompson v. State, 16 Tex. App. 159, the above-named Arkansas cases were approv ingly cited; and the court held, that “It is not necessary, in charging the manner of the disturbance, to enter into details. A general statement, as that it was effected by ‘loud talking/ ‘swearing/ ‘discharging firearms/ whistling, ‘fighting/or the like, would be sufficient.” The special presentment in the case-at bar was sufficient, without specifying the precise language-used by the’ accused or designating the person with whom he-fought; and there was no error in overruling the demurrer.

2. The petition for certiorari alleged that, “Over the objection of defendant’s counsel, said objection being upon the three grounds following, to wit: (1) The evidence offered is irrelevant under the allegations in the special presentment;, *750(2) There is a material variance between the evidence offered and the allegations in the special presentment; (8) The evi-, dence offered discloses the fact that the alleged disturbance took place after the adjournment of the divine services and while the people were engaged in the secular employments of feeding their mules and horses, and while they were preparing and eating dinner; that said evidence was inadmissible, because that part of the statute which says, ‘ and until they are dispersed from such place of worship/ although embodied in the criminal code, was improperly put there by the codifiers and is not the law of this State, and said evidence was irrelevant for the purpose of establishing the truth of the allegations in said special presentment, — all and singular the following evidence from the following-named witnesses was introduced by the State, the court overruling all and singular the objections interposed, as aforesaid, at the time said evidence was offered.” Then follows the testimony of all the witnesses who testified in behalf of the State. This allegation of the petition means, substantially, that all the testimony of all the witnesses who were introduced by the State was objected to because it was irrelevant, for the reasons stated. It is very clear that such an objection can not be considered, if any of the testimony of any of the witnesses was pertinent and admissible. In Powell v. Augusta & Summerville R. R. Co., 77 Ga. 196, it was ‘held: “Unless all the evidence of a witness is objectionable, the particular part which is objectionable should be specified in the motion for a new trial or in the bill of exceptions. This may be done either by quotation or by reference to the brief of evidence; but if by reference, it should be definite and distinct, so that this court could know where to begin and wrhen to stop.” The record in the case at bar discloses that even if any of the testimony of the witnesses introduced by the State was irrelevant, much of it was manifestly pertinent; and consequently there ‘was no error in overruling this ground of the certiorari.

3. Another ground of the certiorari was, that the trial judge refused to give in charge to the jury the following written request of counsel for the accused: “It is not sufficient to show that there was a disturbance, if it also be made to satisfactorily *751appear from the evidence that the divine services had been dismissed and the congregation were engaged in secular affairs, such as feeding horses, preparing and eating dinner, and doing other things of like character, when the disturbance was created. It must be divine service that is disturbed and interrupted, in order to constitute the offense charged in this indictment.” Under a Virginia statute to the effect that, “If any person shall, on purpose, maliciously, or contemptuously, disquiet or disturb any congregation assembled in any church, meeting-house, or other place of religious worship,” etc., it was held : “The statute is applicable not only to disturbances which are made whilst the religious services are progressing, but to disturbances made whilst the congregation is assembled for religious worship; though it be at night after the religious services are closed for the day, and the congregation has retired for rest.” Com. v. Jennings, 3 Gratt. 624. The court in that case said: “There is nothing, either in the language, or in the spirit and intention of the law, to justify the construction that the disturbance contemplated by it can only occur during divine service. It may occur during divine service, and is then certainly an offense against the statute; but it is equally an offense, when it occurs either before or after service, provided the congregation be assembled for religious worship. ’ ’ The statute in Texas was, “ Any person who, by loud and vociferous talking or swearing, or by other noise (or in any other way), wilfully disturbs ‘any congregation assembled for religious worship and conducting themselves in a lawful manner,” etc. In Dawson v. State, 7 Tex. App. 59, the statement of facts shows that, after the congregation was dismissed and the pastor and part of the ’congregation were on their way home, the accused, with others, engaged in a broil, and the accused, by cursing and swearing, disturbed those then on the ground; and that the accused behaved in an orderly manner so long as the pastor was present on the ground. The court said: “We are of opinion that the object, purpose, spirit, and letter of the law are to protect the religious assembly from disturbance before and after service, and so long as any portion of the congregation remains on the ground.” To the same effect are Williams v. State, 3 Sneed *752(Tenn.), 313; Kinney v. State, 38 Ala. 224; Lancaster v. State, 53 Ala. 398; State v. Lusk, 68 Ind. 264; Ball v. State, 67 Miss. 358; Love v. State (Tex. App.), 29 S. W. Rep. 790. Following these authorities, which we believe correctly establish the law on the subject, a congregation of persons which, as the evidence discloses, had been lawfully assembled under a bush-arbor for divine service, could, in legal contemplation, be “disturbed ” by such acts as are specified in section 418 of the Penal Code, although the persons composing the congregation may have been dismissed from the arbor, but remained assembled around it for the purposes of administering to the wants of their domestic animals and preparing and eating their own dinners. And this is true whether the words, “and until they are dispersed from such place of worship,” embraced in that section, and which are codified from the act of 1859 (Acts of 1859, page 62), do or do not properly, in terms, constitute a part of the law relating to the offense therein defined.

4. The presentment charged that the accused disturbed a congregation of persons lawfully assembled for divine service at Concord Church, a Primitive Baptist church, in Jasper county, etc. The proof on the trial was, that the congregation disturbed by the accused was one lawfully assembled for divine service upon the day named in the presentment, and in Jasper-county, at a bush-arbor where a Primitive Baptist Association was being held, and some 170 or 200 yards distant from Concord Church, and that no divine service was held at such church upon that day. The petition for certiorari alleged that the verdict was contrary to the evidence, without evidence to support it, and that there was a fatal variance between the evidence and the charge in the special presentment. Blackstone says of the indictment, “The time and place are also to be ascertained by naming the day and township in which the fact was committed; though a mistake in these points is, in general, not held to be material, provided the time be laid previous to the finding of the indictment, and the place be within the jurisdiction of the court, unless where the jfiace is laid not merely as a venue, but as part of the description of the fact.” 4 Com. 306. As the offense with which the accused was charged in the case at bar *753fias no essential connection with the place where it was committed, it was unnecessary to allege that the congregation disturbed was assembled at any particular place in Jasper county. In State v. Smith, 5 Harr. (Del.) 490, it was held that “indictments for disturbing religious worship need not specify the place.” The general rule is, that place is only essential upon the question of jurisdiction; and even where it is incorrectly stated, if the evidence establishes that the offense was committed within the jurisdiction of the court, the variance will not be fatal. 2 Hawk. P. C. 337; 2 Hale’s P. C. 181; 2 Russ. Cr. 800; 1 Whart. Cr. L. § 280. Where, however, the place is stated in the indictment as matter of local description, or, as Blackstone •says, “part of the description of the fact,” and not as venue, it becomes necessary to prove it as laid. Whart. Cr. Ev. §109; Roscoe’s Cr. Ev. 110, 111. In the case before us, the place “ at Concord Church,” where it is alleged the congregation was assembled, is matter of local description; it identifies the particular congregation alleged to have been disturbed, and was therefore necessary to be proved as laid. Was it proved? The witnesses testified that no divine service was held “at” the church upon the day the congregation was disturbed. They all swore, however, that upon the day named in the special presentment there was a congregation of persons lawfully assembled for divine service at a bush-arbor, where a Primitive Baptist Association was being held, which was about 170 or 200 yards distant from Concord Church, a Primitive Baptist church, and that the accused disturbed this congregation in the manner charged in the presentment. The witnesses, in testifying that no divine service was held “at” the church upon the occasion named, must evidently be understood as meaning that no such service was then held in the church or its immediate proximity. The word “at” is somewhat indefinite; it may mean “in” or “within,” or it may mean “near.” Its primary idea is nearness, and it is less definite than in or on. At the house may be in or near the house. Webst. Diet. The word at is used “to denote near approach, nearness or proximity.” Richardson’s-English Diet. It is a relative term, and its signification depends largely upon the subject-matter in relation to vdiich it is *754used aud the circumstances under which it becomes necessary to apply it to surrounding objects. 3 Am. & Eng. Enc. L. 168, and cases cited in note 1. So where a contract required a, railroad company to construct its track so as to intersect another line at a certain city, the court held, in the absence of proof as to the meaning of the parties, that an intersection near the city, but not necessarily within the corporate limits, would be a substantial compliance. Ft. Worth & N. O. Ry. Co. v. Williams, 82 Tex. 553. In Frey v. Ft. Worth & R. G. Ry. Co., 24 S. W. Rep. 950 (3 Tex. Civ. App.) it was held, that a contract by a railroad company to establish its depot at a specified town is complied with by locating it at a convenient distance from the business portion of the town, and is controlled more by the buildings composing the town than by the corporate limits as defined in the charter. So “at or near” a certain spot upholds the location of the terminus of a railroad 2,475 feet distant therefrom. Fall River Co. v. Old Col. R. R. Co., 5 Allen, 221. “At and near ” may be considered synonymous. Bartlett v. Jenkins, 22 N. H. 63. Giving the word at, as used in the special presentment in the case before us, the signification of nearness, we are of opinion that the evidence discloses that the congregation disturbed was assembled sufficiently near Concord Church to be considered as assembled at the church. The evidence was sufficient to support the allegations in the presentment, and there was no error in overruling the certiorari.

Judgment affirmed.

All the Justices concurring, except



Dissenting Opinion

Lumpkin, P. J.;

dissenting. The presentment charged that the accused disturbed a congregation of persons lawfully assembled for divine service “at” Concord Church, a Primitive Baptist church, etc. The testimony of all the witnesses was, that no divine services were held at such church on the day the disturbance occurred; that no congregation was assembled at the church on that day for divine services, but that a Baptist association was being held at the time at a bush-arbor, about two hundred yards distant from the’ church; that the cursing and fighting with which the accused was charged took place at or near the arbor, and that the congregation disturbed was the one assembled at the arbor. The witnesses all testified that the *755arbor was not at tbe churcb. Their attention was specifically-called to this very matter. I can not undertake to say that they did not know what they were swearing about, or did not mean exactly what they said, especially as there was no affirmative evidence to the contrary of what they swore. No witness testified that the arbor was on land constituting a part of the church grounds or precincts, or that the arbor was at the church, or that the congregation disturbed was assembled at the church. I therefore think that the verdict was contrary to the evidence, and that for this reason the overruling of the certiorari was erroneous.