Stafford v. State , 154 Ala. 71 ( 1908 )

ANDERSON, J

Loc. Acts 1900-01, p. 1298, § 14, in reference to the trial of misdemeanor cases in the Gadsden city court, provides “that the judge of said court shall try both the law and the fact except when trial by jury is demanded by the defendant in writing, filed with the clerk of said court at the first sounding of the cause after he was arrested.” The court adopted a rule, which was a reasonable one, and which it had the inherent right to do, as it in no way contravened the law. The rule adopted provided that the criminal docket be called every Monday morning during term time, “and misdemeanor cases will be called on the first Monday after arrest of the defendants at 9 o’clock a. m., and written demand for the jury (if jury to try the case is desired) must be filed on said day or cause will be placed on the nonjury docket.” The rule was not only warranted by the statute, but was essential to an orderly and expeditive administration of the law. The docket was sounded at. 9 a. m. on Monday succeeding the arrest of the defendant, who failed to make the demand as required by the statute and the rule of the court, and his demand, not having been made until 2 o’clock p. m., of the same day, was properly disregarded by the court.

The state liad the right to show the kind of lick struck by the defendant. A hard or severe blow would be more apt to disturb the congregation than a gentle one. Moreover, there was no ground of objection assigned to the question or answer.

The trial court did not err in permitting the state to show that the preacher, when announcing the Christmas tree celebration, stated that he expected to be present. The witness had just stated that he did not hear that religious service was to be held at the Christmas tree celebration, yet the statement of the preacher that he would be present is a circumstance tending to show that they would have religious (exercise.

Section 4654 of the Code of 1896 is intended to protect any assemblage for divine -worship from disturbance, not only while assembled, but while assembling and dispersing. — King v. State, 38 Ala. 224. Tt matters not as to the nature or form of worship. It is sufficient if the exercises are intended as a celebration of the birth, life, death, and resurrection of our Savior, and in commemoration of the beginning of the Christian era. The crowd had not only assembled to celebrate the birth of Christ with a Sunday school Christmas tree, but they had prayer, song, and scriptural talk from tlie minister, and we are not prepared to liold that tlie trial judge erred in finding tlie defendant guilty.

The act of the defendant, complained of as (die cause of the disturbance, was the assault made by him upon his companion; and we think said assault was highly calculated to disturb those present. A conviction may be had on proof that the defendant willfully and intentionally engaged in a fight. — Coulding v. State, 82 Ala. 48, 2 South. 478. It is true the defendant can show a lawful cause for engaging in a fight, to refute the presumption of an intentional or willful disturbance.— Williams v. State, 83 Ala. 68, 3 South. 743. But the assault committed by the defendant in the case at bar ivas not made in self-defense, and the doing of an act without a lawful excuse, the consequence of which being calculated to disturb and which does disturb, is sufficient, whether there was a purpose or intention to disturb or not. — Salter v. State, 99 Ala. 207, 13 South. 535.

The judgment of the city court is affirmed.

Tyson, C. J., and Simpson and IMoCueuoan, -TJ., concur.