
    The State Respondent v. Bonden, Appellant.
    1. As to instructions in the case of indictment for disturbance of a neighborhood.
    
      Appeal from Laclede Circuit Court.
    
    Foster, for appellant.
    
      Knott, (attorney general,) for the State.
    This is the instruction given by the court at the instance of the State: “ If the jury believe the defendant, in the county of Laclede, within one year before the finding of this indictment, made a loud and unusual noise, or threatened or quarrelled or fought in the town of Lebanon, in said Laclede county, in the presence or hearing of one or more persons then in or near said town of Lebanon, and that such act or acts were wilfully done, they must find defendant guilty.”
    The instruction given on behalf of defendant is: “ The court instructs the jury that the offence in this case is a disturbance of the neighborhood, and unless the jury believe from the evidence that the State has proved that the neighborhood of the town of Lebanon was actually disturbed by the acts or words of the defendant, they ought to find him not guilty.”
   Napton, Judge,

delivered the opinion of the court.

The first instruction given by the court on the trial of this case is erroneous. If the first instruction given for the defendant had been adopted as a modification of the one given for the State, there would have been no reason to suppose the jury could have been misled. But the first instruction given for the State was suffered to stand as an independent and complete proposition; the one given for the defendant was contradictory to it, and so the jury could only be perplexed as to which was to be their guide.

Judgment reversed and cause remanded;

Judge Ewing concurring. Judge Scott absent.  