Mullinix v. State ( 1893 )

The information in this case was framed under the provisions of article 180 of the Penal Code, which prohibits the willful disturbance of a congregation assembled for religious worship, when conducting themselves in a lawful manner.

It is one of the essential elements of this offense, that the congregation conduct themselves in a lawful manner. This must be alleged, in order to constitute a valid indictment or information under said statute. The recited offense in the recognizance is "willfully disturbing a congregation assembled for the purpose of public worship." The necessary allegation, that the congregation were conducting themselves in a lawful manner, was omitted. The offense not being one eo nomine, it is essential that its constituent elements be set out in the recognizance; otherwise the obligation will be fatally defective. Turner v. The State, 41 Tex. 549; Killingsworth v. The State, 7 Texas Cr. App., 28; Koritz v. The State, 27 Texas Cr. App., 53; Edwards v. The State, 29 Texas Cr. App., 452.

The motion of the Assistant Attorney-General to dismiss the appeal is sustained, and the appeal is dismissed.

Dismissed.

Judges all present and concurring.