Adair v. State , 134 Ala. 183 ( 1901 )

DOWDELL, J.

The defendant Avas tried and convicted on an indictment for disturbing religious Avorship. — Grim. Code, § 4654. The assemblage of people charged to have been disturbed, as stated in the bill of exceptions, had met “for an all day singing and preaching;” the singing occupying the forenoon and a part of the afternoon, until 3 o’clock, when the preaching began, with an intermission between the singing exercises and the preaching. The Sitare, on the trial, was permitted to show, against the objection of the defendant, the conduct and declarations of the defendant a.t different times, covered by the time occupied in the singing exercises and preaching. Evidence tending to show wilfullress omi the part of the defendant in the doing of an act causing the disturbance, is relevant and competent. — Price v. State, 107 Ala. 162. There was no error in the rulings of the court, as the purpose of the evidence objected to, ivas to show willful misconduct, and such ivas its tendency. There ivas no election made by the State as to which act of the defendant as causing the disturbance or interruption it would prosecute for, and oven if there had been, such election would not affect the question of the competency and relevancy of the evidence as tending to- show willfulness in the doing of the act relied on as causing the disturbance.

There was no pretense of a disturbance of any person of the assemblage, within the house, where both the singing exercises and the preaching were had. Tbe only evidence of any disturbance, was of persons without the house. Whether these persons at the time of the alleged disturbance constituted a part of the assemblage met for religious worship, was a question of fact for the determination! of the jury. If the persons without the house had separated themselves from those within, who were engaged in religious worship, and no' longer participated in the purposes for which the congregation had met, but had wholly disconnected themselves from the assemblage with no intention of again participating in the purposes of the meeting, and were engaged in the discussions of other matters, -all of which being questions of fact to be determined by the jury from the whole evidence, then the disturbance of one or more of such-persons, would not come within the prohibition of the statute. Charge 2 requested by the defendant, hypothesizing all of tírese facts, correctly stated the law, and its refusal rvas error. We are not to be understood as assorting that a separation, or withdrawal from the congregation by one or more persons of the congregation temporarily, and for personal comforts, or the like, and with the intention of returning, and in the language of the statute, still being at or near the place of worship, would constitute such persons or persons not a part of-the assemblage. So long as such persons form a part of the assemblage, though temporarily separted from the congregation, being still in close proximity, they are within the protection of the statute.

The court in its oral charge to- the jury, among other tilings, stated, “that if the assemblage ivas met for the purpose of instruction as to how to be able to sing religious songs, then that was an assemblage met for religious worship, and one is a member of that assemblage if present, whether he is in the house or out of it.” This was a distinct and substantive statement of a legal proposition, and is not limited or modified in any way, when taken in connection with other p ortons of the general charge. It cannot be affirmed as matter of law that a meeting- together of persons solely for the purpose of “instruction as to hoio to be able to sing religions songs” constitutes an assemblage met for the purpose of religious worship. If the purpose of the meeting be solely for instruction in the art of singing, although confined to the singing of sacred songs, this would not be an assemblage met for religious worship within the meaning of the statute under1 which the indictment was preferred-

There is no merit in the exceptions reserved to other portions of the general charge.

Charges 3, 4, 7, 9, requested by the defendant were misleading. Besides the mere fact of loitering would not necessarily disassociate the loiterers from the assemblage met for religious worship. Charge 5 misstates the law. If the persons disturbed were a part of the assemblage met for religious worship', whether at the time taking part in the service or not, it would be a violation of the statute. Charge 6 was misleading and argumentative, and whs therefore properly refused. Charges 8 and 10 are faulty a.nd were properly refused. The law indulges no such presumption as that stated in the charges. Charge 11 ivas clearly misleading and was properly refused. Moreover, it was not necessary that the persons disturbed should have been bona -fide engaged in doing something connected with the purpose of the assemblage.

For the errors pointed out the judgment of the court must be reversed and the cause remanded.