
    The Commonwealth v. Jennings.
    December Term, 1846.
    1. Circuit Superior Courts — Jurisdiction—Disturbing Religious Worship. — TRe Circuit Superior Courts Rave jurisdiction to try offences against tRe statute 1 Rev. Code, cR. 141, forbidding tRe disturbance of congregations assembled for religious worship.
    2. Same — Same—Same—Construction of Statute, — TRe statute is applicable not only to disturbances wRlcR are made whilst the religious services are progressing; but to disturbances made whilst the congregation is assembled for religious worship; though it be at night after the religious services are closed for the day, and the congregation has retired to rest.
    An information was filed against the defendant, in the Circuit Superior Court of Law and Chancery for the county of Flu-vanna, charging that he, “on the 31st *day of August, in the year 1844,” &c. “did maliciously, contemptuously, and of purpose disturb a congregation assembled for the purpose of religious worship, at,” &c. To this information, he pleaded not guilty; but the jury, by their verdict, found him guilty, and assessed his fine at ten dollars. The defendant, thereupon, submitted a motion in arrest of judgment, upon the ground that the Court had no jurisdiction of the ofience charged in the information. He also moved the Court, in the event of its overruling the motion in arrest of judgment, to grant him a new trial, because the Court had misdirected the jury.
    A.t the trial of this cause before the Circuit Court, it appeared from the testimony on behalf of the Commonwealth, that a Methodist camp-meeting was held in the county of Fluvanna, for the purpose of religious worship, in August 1844, which continued from day to day for several days. That one night after dark, during the continuance of that camp-meeting, but after all religious services had been closed for the day and postponed till the following day, and the congregation, as is the custom at such meetings, had retired to their tents, situated around and about the pulpit or preachers’ stand, to obtain repose and sleep, the defendant procured the tin horn from the preachers’ stand, and disturbed the congregation by blowing the said horn in and upon the camp ground, and about the tents in which the congregation were reposing. Whereupon the defendant moved the Court to instruct the jury, that if they should believe from the evidence that the fact, charged against the defendant, was committed by him at night after all religious exercises for the day had been closed and suspended until the following day, and that the congregation had retired to their, tents to obtain repose and sleep, they were bound to find the defendant not guilty. The Court refused to give this instruction; but, on the contrary, instructed the jury, that if they believed from the ^evidence that the defendant had on purpose and contemptuously disturbed the congregation-so assembled for religious worship as- charged in the information, they ought to find him guilty, although the disturbance was committed at a time of the night after all religious worship had been closed for the day and postponed until the day following, and the congregation had retired to their tents to obtain necessary refreshment and sleep. To this opinion of the Court the defendant excepted, and tendered his bill of exceptions, which, being duly signed and sealed, were made a part of the record in this cause.
    The Circuit Court, with the consent of the defendant, adjourned to this Court, as questions of novelty and difficulty, the following :
    1. Shall the judgment be arrested? If not arrested:
    2. Is there any error in the opinion of the Court as set forth in the bill of exceptions, either in refusing the instructions asked for, or in giving the instructions therein mentioned?
    
      
      See monographic note on “Indictments, Informa-tions, and Presentments" appended to Boyle v. Com., 14 Gratt. 674.
    
   SCARBURG, J.,

delivered the opinion of the Court.

Upon the question of jurisdiction there can be no difficulty. Although the statute, for a violation of which this prosecution was instituted, authorizes a prosecution in the County or Corporation Courts, yet we are of opinion that this does not exclude the jurisdiction of the Circuit Courts. And, moreover, the fifth section of the statute, 1 Rev. Code, ch. 75, p. 265, gives the Circuit Court jurisdiction in this case.

According to the plain words of the act, under which this prosecution was had, one of the offences created by it, is, for any person, on purpose, maliciously or contemptuously, to disquiet or disturb any congregation assembled in any church, meeting-house, or other place' for religious worship. Its language is: “If any person shall, on purpose, maliciously or contemptuously, disquiet *or disturb any congregation assembled in any church, meeting-house, or other place of religious worship,” &c. 1 Rev. Code, ch. 141, p. 555. The object of the law was to protect congregations assembled for religious worship from insult and outrage, and to secure them against any encroachment upon their religious privileges. If assembled for religious worship, it is an offence against the statute, on purpose, maliciously or contemptuously to disquiet or disturb them. But a congregation assembled at a church, or other place where divine worship is wont to be had, is not protected by this act, unless so assembled for the purpose of religious worship. Bufrthere is nothing, either in the language, or in the spirit and intention of the law, to justify the construction that the disturbance contemplated by it can only occur during divine service. It may occur during service, and is then certainly an offence against the statute; but it is equally an offence, when it occurs either before or after service, provided the congregation be assembled for religious worship.

The only portion of our act, from which a different construction might be inferred, is that which provides that the offender “may be put under restraint during religious worship.” This has been relied upon to shew that there is error in the instructions given by the Circuit Court in this case; but it surely cannot have that effect. The offences created by our act are defined in the preceding part of it, and this provision plainly refers exclusively to the mode of prosecution. And such a provision was obviously proj>er and necessary, in order to carry out as fully as practicable the great objects of that protection to congregations assembled for religious worship, which it was the design of the statute to afford. Its sole purpose, doubtless, was to authorize the restraint of the party offending, and a suspension of further action against him during worship, that the services might be interrupted as little as possible. By virtue *of this provision, the party offending may be put under restraint during divine worship, the worship may still go on, and the further prosecution of the offender be attended to after the services, in which the congregation may be engaged at the time of the commission of the offence, may be closed. But it would be a strained construction, which would, under the influence of this provision, restrict the operation of the statute to disturbances during religious worship.

Our act is almost an exact transcript of the Toleration Act of William and Mary, ch. 18, \ 18. - It seems to have been copied from it, leaving out the words “come into.” The Com. v. William .Daniels, 2 Va. Ca. 402. The precedents of indictments under the act of William and Mar3r, always contain an averment that the congregation was met and assembled for religious worship. 2 Chitty’s Cr. Ij. 24-5-6-7. And in some of the English precedents we find an averment that the disturbance was committed “during the time of divine worship,” or “during the performance and celebration of divine service;” whilst in others, it is wholly omitted. This is done to meet the particular circumstances of each case. If the act be committed during divine service, then it may be so averred in the indictment; but if not so committed, then it is not, and ought not to be, so averred. But if it were necessary in all cases to prove that the disturbance occurred during religious worship, it would, we presume, in all cases be necessary so to aver it in the indictment. Taking these precedents, then, as authority for the construction, which has been placed upon the statute of William and Mary bj- the English Courts, the inference is plain, that thej' do not hold it to be necessary that the disturbance should take place during divine service, but that it may occur at some other time, provided that be whilst the congregation is assembled for worship, and is equally punishable in the one case as in the other, under the statute.

*We are, therefore, of the opinion, that the Circuit Court of Fluvanna, has jurisdiction of this case, and that the judgment ought not to be arrested.

And we are further of the opinion, that there is no error in the instructions given by the Circuit Court in this case. Which is ordered to be certified, &c.  