
    HAYNES v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied Oct. 15, 1913.)
    1. Disturbance oe Public Assemblage (§ 10n0 — Evidence—Admissibility.
    In a prosecution for disturbing a congregation assembled for religious worship, evidence that, before accused moved into the community, some one had shot into the church was inadmissible, as it did not tend to show who committed the offense in question.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. § 13; Dec. Dig. § 10.*]
    2. Criminal Law (§ 784*) — 'Trial—Sufficiency of Instructions — Circumstantial Evidence.
    In a prosecution for disturbing a congregation assembled for religious worship, where one witness testified that she recognized accused and his companion at the time, and other witnesses recognized the horses which the culprits rode as those of accused and his companion, the evidence was so positive that a charge on circumstantial evidence was unnecessary.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1883-1888,1922, 1960; Dec. Dig. § 784.*]
    
      3. Criminal Law (§ 814) — Instructions— Applicability to Evidence.
    Evidence, in a prosecution for disturbing a congregation assembled for religious worship, held insufficient to raise the issue of whether one of the persons who made the disturbance was not riding on a horse and the other on a mule, so as to require an instruction thereon asked by accused, who with his companion were both riding on horses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Criminal Law (§ 814) — Instructions— Applicability to Evidence.
    Where the evidence, in a prosecution for disturbing a congregation assembled for religious worship, showed that the people were assembled in the church for worship, that accused saw them there, and that some one threw a jug through the window, an instruction that the jury should acquit if they should believe that accused threw the jug not knowing the people were assembled for worship, was properly refused.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    5. Disturbance op Public Assemblage (§ 15) —Trial —Instructions —Applicability to Evidence.
    Where the evidence in a prosecution for disturbing a congregation assembled for religious worship showed that a jug was thrown through .the window by one of two persons acting together, and accused admitted that he was with a certain companion, it was not error to refuse to instruct that if accused did not throw the jug, he must be acquitted, for if either threw the jug, both would be guilty.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. §§ 17, 18; Dec. Dig. § 15.]
    6. Disturbance op Public Assemblage (§ 1) — Congregation Assembled por Religious Worship — Presence of Minister.
    In a prosecution for disturbing a congregation assembled for religious worship, where people assembled at the church for worship were disturbed, the mere fact that the minister failed to come did not alter the character of the assemblage.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    7. Criminal Law (§ 800) — Instructions— “Willfully.”
    In a prosecution for disturbing a congregation assembled for religious worship, where the instructions defined the word “willfully” as meaning with evil intent, or without reasonable grounds for believing the act to be lawful, it was not necessary to give any other instruction defining the word, nor was it necessary to carry the definition forward in each paragraph of the instructions wherein the word was used.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.
    
    For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481; vol. 8, pp. 7835, 7836.]
    8. Disturbance op Public Assemblage (§ 1) — Congregation Assembled for Religious Worship. '
    The law protects a congregation, assembled for religious worship, from disturbance so long as any one of them remains on the ground.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    9. Disturbance of Public Assemblage (§ 11) — Evidence— Sufficiency.
    Evidence, in a prosecution for disturbing a congregation assembled for religious worship, held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. § 14; Dec. Dig. § 11.]
    10. Criminal Law (§ 655) — Trial—Conduct of Triad — Instructions.
    That the trial court led accused to believe that a requested charge would be given which the court failed to give, and accused argued before the jury that that was the law, while the prosecution insisted it was not, was not ground for reversal, where the instruction was one that there was no error in refusing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    11. Criminal Law (§ 1064) — Appeal and Error-Reservation of Objections — Motion for New Trial.
    Objections not appearing in accused’s motion for new trial cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    Appeal from Tyler County Court; A. G. Reid, Judge.
    Bob Haynes was-convicted of disturbing a congregation gathered for religious worship, and he appeals.
    Affirmed.
    Joe W. Thomas, of Woodville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

This is a companion case to that of Lee Laird v. State, 155 S. W. 260, recently decided by this court. Appellant and Laird were charged by information with disturbing a congregation gathered for religious worship, convicted, and his punishment assessed at a fine of $25.

The first three bills of exception complain of the action of the court in refusing to permit him to prove that more than a year prior to this occurrence, and before appellant had moved into the community, some one had shot into the Cherokee churchhouse. That some person other than defendant may, at some time prior thereto, have committed a crime against this property would tend to elucidate no issue in this case, and would not tend to show who committed the offense on this occasion. There was no evidence offered as to who did the shooting, and no evidence placing such person in proximity to the church on this occasion. Therefore the court did not err in excluding the testimony.

One of the main contentions of appellant is that the court erred in refusing to charge on circumstantial evidence, and in refusing his special charge presenting that issue. A short synopsis of the testimony offered by the state is as follows:

Miss Ada Barnes testified: “I was at Cherokee church about November 4, 1911; we got there about 7 o’clock; we had just arrived, and I had stopped on the front step of the church, and was standing there at the time the jug was thrown through the window, and when I heard the crash of the jug through the window immediately thereafter, just as soon as a person riding fast could travel the distance from the window that was broten to the corner of the house, I saw Bob Haynes and Lee Laird pass the corner of the house, within about six feet of where I was standing. I saw their faces and recognized them, and I also recognized the horses as the horses of Lee Laird and Bob Haynes. The moon was shining very bright. Lee Laird was riding Bob Haynes’ horse, and Bob Haynes was riding Lee Laird’s horse. Lee Laird’s horse is a gray, and Bob Haynes’ horse was a sorrel. There was only those two when they ran by where I was standing. I saw Lee Laird and Bob Haynes again about 15 minutes after the throwing of the jug, they came back towards the church from the direction they had gone, as they rode by after the throwing of the jug. There was to the best of my recollection six of us at the church at the time, myself, my sister Pearl, my brother Arthur, Miss Nellie Lockhart, Lillian Platt (now Davis), and Lee Vinson. We were there for the purpose of attending church; my father had told us there would be preaching there that night. We were conducting ourselves in a lawful manner.”

Miss Nellie Lockhart testified: “I was at Cherokee church November 4, 1911. I was sitting by the window that the jug came in at in about three feet of the window. I was not facing the window, but 1 turned when the jug -came in at the window and saw two persons riding off, they were riding a gray horse and a sorrel horse. I did not recognize the parties on the horses; they had their backs to me. There was only two of them, and neither was riding a mule. It was a bright moonlight night. Some 19 minutes after the jug was thrown in at the window, Bob Haynes and Lee Laird came up to where we were standing a little distance from the church, and Lee Laird was riding a gray horse and Bob Haynes a sorrel. We were at the church for the purpose of attending preaching; this happened in Tyler county, Tex.”

Arthur Barnes testified: “I was at Cherokee church November 4, 1911. There was six of us went there to preaching. I do not know who threw the jug; they were riding fast. I saw two parties come by after the jug was thrown in at the window; the horses they were riding were Lee Laird’s and Bob Haynes’. I did not recognize the parties on the horses. The horses were a sorrel and a gray horse, and I saw Laird and Haynes a few minutes after the jug was. thrown in at the window, and they were riding horses like the parties were riding when the jug was thrown in at the window.”

Under every decision rendered by this court since its organization, this testimony would not call for a charge on circumstantial evidence. Miss Ada Barnes testifies positively she recognized the parties at the time, and the other witnesses testify to such facts and circumstances as would make the case one of positive testimony. Even the defendant’s witnesses testify to such facts. Lee Vinson testified for defendant; “I was at Cherokee ckurchhouse on the night of November 4, 1911. There were six of us. We went there to attend preaching. I was there with Pearl Barnes, now my wife. It was a bright moonlight night. I heard the jug strike the window. I was sitting inside the church. I jumped up and ran to the door, when the jug crashed through the window, and saw the parties riding off. I could not tell who it was; they were riding fast. I could not tell whose horses it was. It might have been mules. I did see Lee Laird and Bob Haynes about 10 minutes after the jug was thrown., Lee Laird and Bob Haynes came up to where we were about 10 minutes after the jug was thrown; they came from the direction that the parties had gone that ran by at the time the jug was thrown. I saw them again a while afterwards. They passed, us on their horses. Laird was riding a gray horse and Haynes was riding a sorrel ball-faced horse.” This witness was the only one present on the occasion that appellant introduced. Por a long list of authorities holding that such testimony as this does not call for a charge on circumstantial evidence, see Branch’s Crim. Law, § 203, one of the rules stated being that if the facts proven are in such close juxtaposition to the factum probandum as to be equivalent to direct testimony, a charge on circumstantial evidence is not required (citing Wheeler v. State, 15 Tex. App. 612; Montgomery v. State, 55 Tex. Cr. R. 504, 116 S. W. 1160; Holt v. State, 9 Tex. App. 582; Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679; Adams v. State, 34 Tex. Cr. R. 471, 31 S. W. 372; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Smith v. State, 90 S. W. 638).

The appellant requested the court to charge the jury: “You are instructed by the court that if you believe from the evidence that the party who threw the jug through the window at Cherokee church on the date alleged in the information in this case was riding a mule, or if you have a reasonable doubt that the jug was thrown by a party riding a horse, in either event you will acquit the defendant.” He earnestly insists that the evidence raises this issue, and it was error to refuse this charge. It is seen by the testimony of all the witnesses.-present on the occasion (heretofore copied) who testify as to the animals that the parties were riding horses, one a gray and the other a sorrel-horse. Now, what is the testimony appellant claims raises this issue? Herman Poole testified that Monday morning he examined the ground near the broken window, and “found a track wMcli looked like a mule track,” but said be would not swear it was a mule track. Prof. G-ine Nowlin testified be examined tbe ground Monday morning after the jug was thrown on .Saturday night, and “he found but one mule track between the road and the house; that he was raised on a farm and knew a mule track from a horse track; that the track found was about 10 feet from the broken window.” He added: “I would not swear positively that the track X saw near the window was a mule track.” Willis Bowen testified for defendant that he examined the tracks on Sunday morning, and could not tell whether the tracks were made by a mule or horse; there was an old mule that grazes near the church, running around there. The only other evidence offered was the testimony of Clarence Parks and Budd McAlister, who testified that 2% miles from this church they saw Hardy Marshall and Louis Jordan, and one of them was riding a inule and the other a horse, but no witness places these boys nearer than 2% miles of the church. In rebuttal the testimony of Hardy Marshall was introduced, who testified to meeting these boys and stated they were on their way to Joe Goodes to a singing, and other witnesses testify they saw them at the singing. He also testifies they did not go near the church that night. This is all the testimony on that issue, and in the light of the positive testimony offered by the state that the persons who threw the jug were riding a sorrel horse and a gray horse, the court did not err in refusing the special charge. It may be said that there was no testimony raising that issue.

The defendant asked several charges instructing the'jury that if appellant did not know the people were assembled there for religious worship, to acquit even though they believed he threw the jug. The testimony is unequivocal that these people at the church had gone there to attend religious worship, assembled there for that purpose, and if appellant threw the jug, they were disturbed by such act. Appellant’s testimony, while he denies throwing the jug, shows beyond question that he knew these people were there at the church; one witness says one of them dropped his hat and he (witness) picked it up and handed it to him. Under such circumstances the court did not err in refusing the special charges on that issue.

The testimony shows beyond question that the two persons who rode by the church were acting together. Appellant, while admitting that he and Laird were together, says neither of them threw the jug. Under such circumstances the court did not err in refusing to instruct the jury that they must believe beyond a reasonable doubt that appellant, Haynes, in person threw the jug, or they would acquit him. Under the evidence, if either he or Laird threw the jug, both would be guilty.

There was no testimony calling for special charges Nos. 4, 5, and 6. The testimony of all the witnesses show that the persons assembled at the church had gone there to attend divine services, and the fact the minister did not come would not alter nor change the purpose for which they had gathered and assembled at the church.

In his charge the court defined the term “willful” thus: “The word ‘willfully’ as herein used means with evil intent, or without reasonable grounds for believing the act to be lawful.” Having thus defined the term, it was not necessary to give the special charge 'defining the Word, and neither was it necessary to carry the definition forward in each paragraph of the charge wherein the word was used.

It is the law of this state that the law protects a congregation assembled for religious purposes so long as any one of them is on the ground, and the court did not err in so instructing the jury, and especially is this time in this case when we read the entire charge of the court. The evidence is, in our opinion, ample to support the verdict. We think the part hereinbefore copied will evidence that fact without a recitation of any other portion of it.

The complaint is made that the court led appellant to Relieve he would give one of the special charges requested, which the court failed to give, and which appellant says he insisted before the jury was the law of the case, and which the county attorney insisted was not the law, worked injury to his client, and for this reason, the case should be reversed. The court states in approving the bill that no such complaint was made at the time of the trial, and it was first complained of in the motion for a new trial. If the charge requested had been the law of the case, of course, the failure of the court to have given it would be error; but, as we have held herein that the court did not err in refusing to give the charge, the matters stated are not such as would entitle appellant to a reversal of the judgment.

Owing to the earnest insistanee of appellant’s counsel, we have taken up each and every bill of exception and ground in the motion for a new trial, and passed thereon. But those grounds that the able counsel presented in his oral argument before this court and presented in the brief, which do not appear in the motion for new trial, cannot be considered by us, and, finding no error pointed out in the motion for new trial, nor in any bill of exceptions filed herein, the judgment is affirmed.  