1. Disturbing Religious Worship-Evidence-Practice.

Over objection of the defendant, the State was permitted to ask a witness if the manner in which the defend. ant called the witness a d-d liar was calculated to disturb the congregation. The witness answered that it was; to which answer the defendant also objected. Held, that both objections were well taken, inasmuch as, under the facts in this case, the evidence may have had material weight in influencing the jury to convict.

2. Same.-"Why was it that the defendant called you a d-d liar?" and "What had you said and done?" were questions competent to be asked by the defence in mitigation of punishment, but not in justification.

APPEAL from the County Court of Jack. Tried before the Hon. T. M. JONES, County Judge.

The opinion discloses the nature of the case. A fine of twenty-five dollars was assessed by a verdict of conviction.

J. W. Kee, for the State, testified that the people of the neighborhood assembled at the Salt Creek school-house, in Jack County, for religious services, on the third Sunday in May, 1882. They aggregated quite a large number. Some were inside of the school house, and a number were seated on a log some twenty-five or thirty feet from the house. It was the custom for people to sit on this log before services, or when the house was crowded. At this time services had not commenced. There had as yet been neither preaching, praying nor singing. Some ten or twelve persons were seated on the log. There and then, in the course of a conversation, the defendant, in an angry and violent manner, and in a tone of voice loud enough to have been heard by the people in the school-house door, said to the witness: "It is a d-d lie!" The men seated on the log got up, but the witness did not know whether or not they were disturbed. Over objection of the defendant, the prosecuting attorney was here permitted to ask the witness whether or not the defendant spoke the words used in a manner calculated to disturb the congregation; and, over the same objection, the witness was permitted to reply in the affirmative.

On cross-examination, the defence asked the witness what caused the defendant to call the witness a "d-d liar," and what the witness had done or said to the defendant. The State objected and the witness was not permitted to answer.

H. C. Kee testified, for the State, that he and his wife attended church at the school-house on the day referred to in the information.

The witness was sitting on the log next to the defendant, when the defendant said to J. W. Kee: "It is a d-d lie." The witness, who was one of the congregation assembled for religious worship, was disturbed, and, with others of the ten or twelve persons who were seated on the log, he got up. He did not know that others were disturbed, though they seemed to be.

Jessie Leatherman, J. M. Calvert and E. L. Meyers testified, for the defence, that they were acquainted with the reputation of J. W. Kee for truth and veracity. It was bad, and they would not believe him on oath. Meyers testified that he was one of the congregation assembled at the school-house on the day referred to, and heard the defendant tell J. W. Kee: "It is a d-d lie." Those on the log got up, and Kee and defendant started off. Defendant spoke in a harsh manner. Witness was not disturbed, and did not know that others were.

H. Bruton testified that he occupied a seat in the school-house farthest from the log on which several parties were seated before services commenced. He did not hear the defendant call J. W. Kee a d-d liar. He was not disturbed and knew of no one that was.

The motion for new trial attacked the verdict as contrary to law and evidence.

No brief for the appellant. J. H. Burts, Assistant Attorney-General, for the State.

HURT, Judge. This conviction was for disturbing a congregation assembled for religious worship. The disturbance is charged to have been done by " cursing and swearing in a loud and vociferous manner."

The State, over objection of defendant, was permitted to ask J. W. Kee this question: "Was the manner in which the defendant spoke, when he called you a d―d liar, calculated to disturb the congregation?" Witness answered: "It was in a manner calculated to disturb the assembled congregation." Defendant objected to the answer as well as the question. We are of the opinion that the objections were both well taken, inasmuch as, under the facts in this case, the evidence may have had material weight in influencing the finding of the jury.

Defendant propounded to J. W. Kee this question: "Why was it that defendant called you a d-d liar? What had you done or said?" To this question the State objected, and the objection was sustained by the court. Not as a justification, but in mitigation of the punishment, we think this question was legal and should have been allowed. The other assignments are not well taken.

For the errors above indicated, the judgment is reversed and the cause remanded. Reversed and remanded.

TRESPASS-NOT INDICTABLE.

STATE V. WHEELER.

[3 Vt. 344; 23 Am. Dec. 212.]

In the Supreme Court of Vermont, February, 1830.

A Mere Trespass on private property, without disturbance of the peace is not indictable.

Information by the State's attorney alleging that Daniel Wheeler of etc., on etc., one two years' old steer, of a red color, of the value of twenty dollars, of the goods and chattels of one Ebenezer Davis of, etc., in a certain field belonding to one Simeon Morse of, etc., with force and arms feloniously and willfully, maliciously, mischievously, and wickedly, then and there did kill."

A second count set forth the offense as in the first except that it alleged that the steer was the goods and chattels of some person unknown and that the respondent with force and arms, etc., with a gun loaded with power and balls of lead, did shoot and kill the said steer. The jury found the respondent guilty, and he filed a motion in arrest of judgment on the ground of the insufficiency of the information which was now brought up for the decision of this court.

Kellogg, for the prisoner, contended that the act set forth in either count of the information was not a breach of the peace, or at least not an indictable offense. The act complained of comes under the head of offenses against private property, and was not by the common law punishable criminally. The party aggrieved was left to his action of trespass. Afterwards by a multitude of statutes in England, such acts were made penal there. But it has been decided by this court, "that we can not treat those statutes as common law, nor as in force here.' "2 The act here complained of was attended with no actual disturbance of the peace, and did not tend to the prejudice of the community, but, only to the prejudice of one individual, and even this does not appear with any certainty from the information. Counsel cited, King v. Wilson,3 Ranger's Case, 2 Chitty's Criminal Law,5 3 Burrow.6

4

Campbell, State Attorney, contra, contended that this was an offense tending to the prejudice of the community, and that all such acts were indictable at common law. That the offense complained of is a breach of the peace, and as such is indictable. As to the second count, if

third persons, are unknown, it is sufficient to describe them as such.1 The defects of some of the counts does not affect the validity of the remainder.2

By the Court, PRENTISS, C. J. If the matter in the information is charged as a felony, and is to be considered as so laid it would seem that judgment could not properly be rendered upon it as for a misdemeanor. Though it was held in some of the old cases that when a misdemeanor was indicted as a felony, and there was a conviction on the indictment, judgment might be given as for a misdemeanor, it is fully established by the modern authorities that the indictment in such case is bad, and that the judgment must be altogether arrested. On an indictment for a felony the prisoner must appear in person, and on trial must here be taken, and retained in custody in discharge of his recognizance; whereas, on an indictment for a misdemeanor, he is allowed to remain on bail, and may in general appear and plead by attorney. These are privileges of which the party ought not to be deprived by changing the mode of proceeding against him; and they appear to be of sufficient importance to require an adherence to the common-law rule.

5

Whether or not the fact alleged in the information is a misdemeanor and can be the subject of a criminal proceeding, is a question upon which we have entertained doubts, but upon which we have at length formed an opinion. The distinction between those trespasses for which there is a private remedy only, and those for which there may be a public prosecution, is not laid down in the books with much accuracy or precision. It seems, however, to be clear that though every trespass which is a disturbance of the peace is indictable, a mere trespass, which is the subject of a civil action, can not be converted into an indictable offense. It appears to be the doctrine of the case of R. v. Storr, and of R. v. Bake, that no indictment lies at common law for a trespass committed to land or goods unless there be a riot or forcible entry. According to those cases a mere invasion of private property without a disturbance of the peace, does not concern the public, but is a private injury only, for which an action of trespass lies. In England the killing or maiming cattle belonging to another from motives of malice or revenge to the owner, is made penal by statute; and there is no precedent in the English books of a conviction for killing or wounding an animal, nor any intimation that the act is an indictable offense at common law. In Ranger's Case, which was an indictment at common law for unlawfully with force and arms, and against the peace, maiming a

11 Chit. Cr. L. 175.

2 1 Chit. Cr. L. 205.

3 Rex v. Westbeer, 2 Str. 1133; 1 Chit. Cr. L. 639; Com. v. Newell, 7 Mass. 245.

4 3 Burr. 1698.

5 Id. 1731.

62 East P. C. 1074.

t

horse, it was held that the indictment contained no indictable offense; for if the offense was not within the statute, the fact in itself was only a trespass.

Although an intimation was thrown out in the case that the words vi et armis did not imply force sufficient to support an indictment, it does not follow that the mere laying of the special force which attended the act would have varied the case in principle. It would hardly do to act upon the distinction between actual and implied force and to hold that every trespass to property when there is actual force, is indictable. If such was the law, the wounding or injuring of an animal belonging to another from a sudden impulse of passion, towards it, which is plainly an injury of a private nature, and amounts to nothing more than a trespass, would form the ground of a criminal proceeding. Indeed, the doctrine would make almost every trespass or injury to private property the subject of an indictment and would give to the courts a fearful and alarming jurisdiction, which could be exercised in general to little other purpose than vexation and oppression. The epithets willfully, maliciously, etc., contained in the information, are words of mere form which may be applied to every trespass or injury to private property; and neither they nor the special statement of the manner in which the act was done, showing, actual force, can have the effect to make the act a public offense. In exercising criminal jurisdiction in common-law cases, courts should be under the guidance and restraint of established principles and precedents and should not allow themselves to go beyond them. An undefined jurisdiction, or an unlimited discretion in criminal cases, is an arbitrary and damaging power, incompatible with civil liberty and ought never to be assumed or exercised; and unless an act is made criminal by some statute, or is clearly defined to be an offense by the common law, it ought not to be treated or punished as such. The civil remedy which the law affords to trespasses to property is, in ordinary cases, a sufficient corrective; but if the interest or protection to society requires that any class of them, not now indictable should on account of their mischievous nature or tendency, be proceeded against and punished criminally, the Legislature can make the necessary provision.

Judgment arrested.