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words, the person doing the thing is not punishable; while, on the other hand, a persom may defend himself by showing, if he can, that either the main part of the enactment, or some clause put into it to create an exception, is so unguardedly worded as to open an escape for him through the letter, his act being still a comptete violation of its spirit.”! So, likewise, the thing may be excepted out of general words, "for the reason that to include it would be contrary to the general spirit and policy of the law.” 2

This author proceeds, in the same section to this effect: Perhaps under this head might be embraced cases like those already alluded to, where a prohibition in general terms is held to apply only to willful transgressions, it being a principle of the common law that no one shall suffer criminally for an act in which his mind does not concur.” And again, in section 232: " This doctrine is usually stated in terms somewhat narrower than those last employed ; in substance, that the case must come, not only within the words of the statute, but also within its reason and spirit, and the mischief it was intended to remedy."

The object and intent of the law on which this prosecution is based was evidently to protect congregations assembled for religious worship from willful disturbance; yet, to hold this conviction proper and legal, it must be so construed as to bring within its provisions the officers of the church or congregation who may attempt, in a quiet, peaceable, and orderly manner, to protect the same congregation from imposition, and perhaps serious detriment, by maintaining in the pulpit one whom they regard as totally unfit for the position.

We are of opinion that, under the authorities cited, the statute does not bear this interpretation; and that although the proof should bring the accused within the letter of the law, which we think not to be the case, still they do not bring him within its reason and spirit, and the mischief it was intended to remedy. The proof is very meager to show that this congregation was disturbed at all, and there is an entire absence of proof that the accused willfully disturbed it. On the contrary, the proofs abundantly show that the accused and those with whom he acted were not only not actuated with a purpose willfully to disturb the congregation, but that he and they were actuated by a pure and worthy motive in suspending the minister until grave charges against him could be inquired into by his official superior, the elder. We are not informed as to whether the steward's acts were clearly within the law of the church or not, nor is it material that we should make the inquiry. Enough is set out to show that the motive by which they were governed was rather to protect than to disturb the congregation, and

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was our duty to suspend Parson Shanks from preaching until the elder could be heard from. The preacher said this was the right way, and we appointed Louis Richardson to carry out this resolution. We thought it was wrong for the officers to allow a man to preach when such charges were circulated against him. When we went to the church that night, Henry Christmas, Louis Richardson, and myself, went in together; and Louis went up in front of the stand, and said, “Brother Shanks, you will have to quit preaching until charges against you are investigated by the elder.' Shanks took up his stick and hat, and said, 'I am one man, but I am not afraid of all three of you.' Louis said, 'I can read the discipline, and I know my duty as steward, and you will have to come down until we hear from the elder.' Louis spoke in a mild manner. We all thought we were doing our duty. When we went in Shanks was not preaching, but was talking about what the committee had him up about the night before.”

The statement of this witness is borne out, and not contradicted by any other testimony in the case. It was admitted without objection, and the above extract is set out for the reason that, in our opinion, it shows the animus which actuated the appellant on the occasion of the alleged disturbance, and presents the question whether, under this statement of facts, the appellant was guilty of a violation of law or not.

The statute provides that " any person who by loud or vociferous talking, or swearing, or by any other noise, willfully disturbs any congregation assembled for religious worship,” etc., “shall be deemed guilty of a misdemeanor," etc.

The offense created by the statute consists in willfully disturbing the character of congregation mentioned, for the purpose mentioned, and in the manner mentioned in the act. So that, to constitute the offense, there must be a congregation assembled for religious worship, and that congregation, so assembled, must be disturbed, that is, agitated, roused from a state of repose, molested, interrupted, hindered, perplexed, disquieted, or turned aside or diverted from the object for which they are assembled; and the act which causes the disturbance must be willfully done, that is, willingly, designedly, purposely, obstinately, or stubbornly done. These elements combining, the offense would be complete. Does the proof show that this appellant, by loud and vociferous talking, and other noises, disturbed the congregation assembled for religious worship, and conducting themselves in a lawful manner, and did he so cause such disturbance willfully?

Mr. Bishop, in treating of the application and interpretation of the law of statutory offenses, condenses the subject into this statement: “Whenever the thing done comes not within the mischief which evidently the statute was intended to suppress, though it comes within its

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words, the person doing the thing is not punishable; while, on the other hand, a persom may defend himself by showing, if he can, that either the main part of the enactment, or some clause put into it to create an exception, is so unguardedly worded as to open an escape for him through the letter, his act being still a complete violation of its spirit.”1 So, likewise, the thing may be excepted out of general words, “ for the reason that to include it would be contrary to the general spirit and policy of the law.” 2 This author proceeds, in the same section to this effect:

"Perhaps under this head might be embraced cases like those already alluded to, where a prohibition in general terms is held to apply only to willful transgressions, it being a principle of the common law that no one shall suffer criminally for an act in which his mind does not concur." And again, in section 232: “ This doctrine is usually stated in terms somewhat narrower than those last employed ; in substance, that the case must come, not only within the words of the statute, but also within its reason and spirit, and the mischief it was intended to remedy.”

The object and intent of the law on which this prosecution is based was evidently to protect congregations assembled for religious worship from willful disturbance; yet, to hold this conviction proper and legal, it must be so construed as to bring within its provisions the officers of the church or congregation who may attempt, in a quiet, peaceable, and orderly manner, to protect the same congregation from imposition, and perhaps serious detriment, by maintaining in the pulpit one whom they regard as totally unfit for the position.

We are of opinion that, under the authorities cited, the statute does not bear this interpretation; and that although the proof should bring the accused within the letter of the law, which we think not to be the case, still they do not bring him within its reason and spirit, and the mischief it was intended to remedy. The proof is very meager to show that this congregation was disturbed at all, and there is an entire absence of proof that the accused willfully disturbed it. On the contrary, the proofs abundantly show that the accused and those with whom he acted were not only not actuated with a purpose willfully to disturb the congregation, but that he and they were actuated by a pure and worthy motive in suspending the minister until grave charges against him could be inquired into by his official superior, the elder. We are not informed as to whether the steward's acts were clearly within the law of the church or not, nor is it material that we should make the inquiry. Enough is set out to show that the motive by which they were governed was rather to protect than to disturb the congregation, and

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1 Bish, Stat. Cr., sec. 230.

2 Id. 231.

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Several interesting questions are discussed in the able brief of counsel for appellant.

1. That the time of the commission of the offense was not proven. This, proposition is not sustained by the record. The date of the offense was stated to be the 30th of April, 1881; the trial was the 3d of August, 1881, and the witnesses say the disturbances occurred on the 30th of April. Parson Jolley says: “On the 30th of April we had a conference of the church.” It is true he does not say in totidem verbis that it was April, 1881. But no other meaning can be ascribed to his language, and the objection is too fine and technical if not hypercritical.

2. That there is a fatal variance between the affidavit or complaint and the information. The complaint charged that the offense was committed by appellant and one Joe Jolley, “by loud and vociferous talking and by assaulting each other.” As seen above, the information charged that appellant alone committed the offense “ by loud and vociferous talking and by assaulting Joe Jolley.” We see no inconsistency between the two charges. If both parties really indulged in loud and vociferous talking and assaulting each other, then each one separately committed his share of it and could be charged with it separately in a separate information based upon the complaint which charged both jointly. This is just one of those exceptional cases wherein the joint charge comprehends and may be divided into two separate charges without varying the nature of the original charge as stated in the complaint.

3. It is claimed that the evidence does not support the allegations in the information nor the verdict and judgment. The position insisted upon is, that if a disturbance was in fact created by defendant, then the congregation disturbed was not one assembled for religious worship, but a meeting or conference of the church, convened solely for the transaction of business matters. The statute, protects and is only intended to protect, any congregation or part of a congregation assembled for religious worship. Now, there is no dispute as to the object and purposes of the meeting in question; all the witnesses agree that it was a conference for business — called expressly for that purpose and the congregation had assembled alone for that purpose. Religious worship, on the other hand, is where the congregation have assembled for the purpose of performing acts of adoration to the Supreme Being, or to perform religious services in the recognition of God as an object of worship, love and obedience, according to the rites and services of any system of faith entertained with respect to the Deity. If it was in truth a business meeting, then the fact that parson Jolley ex mero mota

1 Penal Code, art. 180.

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respective characters. At all events appellant understood that the reverend pastor had so conducted himself with regard to him.

On the 30th of April, 1881, a conference was held in said church and, as explained by the pastor in his testimony on the trial, “ it was a business meeting and among other things to decide differences among the brotherhood. * The meeting was opened by singing and praying, and I read a chapter in the Bible and made a few remarks, when the meeting was opened for business.” Amongst other matters that had been submitted to the conference for adjudication and settlement was the difficulty above mentioned. Being a party interested, the pastor, who was ex-officio presiding officer, very considerately and very properly excused himself, and George Mann was elected moderator A motion was then made and carried that Peter Wood be allowed to make a statement of the nature and cause of the difficulty. Defendant arose and proceeded to do so. Just about this time, Parson Jolley says he had given brother Giles Walker a chew of tobacco, and was putting the tobacco into his pocket. “Defendant after he got up, laid his left hand upon the Bible, which was open, and said the Bible said, if my brother told a lie it was his duty to tell him of it; and that Brother Jolley had as good as sworn lies him." At this Jolley jumped up, his right hand still in his pocket, where he had put his tobacco, and as he got up said “he would take the lie off no man; and here and then, as one of the witnesses graphically expresses it, “the rumpus begun; there was considerable disturbance.” George Mann says,

Myself and others got between them, and finally squelched the difficulty ; don't know that any licks were passed, but the meeting was disturbed. The conference silenced both parties.”

In addition to his ecclesiastical punishment of being thus silenced as an exhorter, defendant has also been held answerable to the temporal or secular power of the State, was prosecuted for disturbance of religious worship, tried and found guilty upon the facts as above stated, and condemned by the verdict and judgment rendered in the lower court to pay the sum of $25 fine, and all costs of the proceeding. From this judgment he appeals here, and asks that the judgment be reversed.

The gravamen of the offense, as stated in the information is “ that Peter Wood, in the county of Houston and State of Texas, on the thirtieth day of April, in the year of our Lord one thousaud eight hundred and eighty-one, did willfully disturb a congregation assembled for religious worship, and conducting themselves in a lawful manner, by loud and vociferous talking and by assaulting Joe Jolley, then and there against the peace and dignity of the State.

2 DEFENCES.

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