4 Ga. App. 783 | Ga. Ct. App. | 1908
We hold the judgment of the lower court, refusing the defendant a new trial, to be erroneous, upon two of the - exceptions made in the record.
The facts in the present case are not similar to those in Montross v. State, 72 Ga. 262 (53 Am. R. 840), Wells v. State, 97 Ga. 210 (22 S. E. 958), or Nero v. State, 126 Ga. 554 (55 S. E. 404). In the Montross case the defendant Was properly prevented from reading to the jury, as a part of his statement, outrageously vulgar extracts from other publications, as a justification of his own violation of law. In the Wells case there was an attempt to read a letter as part of the statement; and the same, thing was true in Nero’s case, in which the-“attempt to bolster up his unsworn statement by making profert of documents, letters, or the like” is condemned; but in the present case the minutes kept by each faction of this church had been introduced, and hence the defendant here was not making the minutes a part of his statement without introducing them, and thus unfairly depriving the State of the opening and concluding argument. The criticism on this practice is expressed by Judge Evans in Nero’s case, as follows: “Without such proof he can not place them before the jury as corroborating evidence of what he says; it would be extending his privilege far enough to accord him the right of making a statement to the.
The statute which forbids the disturbance of a congregation of persons, lawfully assembled for divine worship, is intended to protect citizens in the right of worshiping the Deity in their own way, without the slightest molestation or hindrance. It is directed against any one who in any way does anything which will prevent religious services. But the statute was never designed to be used as a means of settling, by a criminal prosecution, the respective rights of contestants for the privilege of carrying on divine worship at a particular time or in a particular house of worship. That" complete separation of church and State which is absolutely essential, no less to our political than to our religious liberty, forbids the State to recognize either of two contesting factions as the lawful congregation, which has been lawfully assembled at a particular church for divine worship (where the purpose of each is to carry on divine worship), except under the ordinary rules of evidence which shall disclose which organization or faction is legally entitled to the possession of the premises. In the absence of such evidence, and where it is plain, as in the present case, that the only purpose of the accused was to conduct divine worship himself, in a proper, decent, and orderly manner, it can well be said that he has the same right to protection against disturbance on the part of others (who would perhaps prefer to hear a different pastor) as they would be entitled to receive against his preaching. It is beyond the power of the courts to settle by criminal prosecutions the respective rights of contesting claimants to a beneñee, even in a negro church. Judgment reversed.