
    Adair v. The State.
    
      indictment for Disturbing Religious Worship.
    
    1. Indictment for disturbing religious worship; admissibility of evidence. — On- a trial under an indictment for disturbing religious worship, where it is shown that the assemblage -of people charged to have been disturbed had met for an “all day singing and preaching,” it is competent for the State to introduce in evidence the conduct and declarations of the defendant at ■ different times covering the period occupied in the singing exercises and preaching; such evidence tending to show willfulness on the part of the defendant in the d-oing of any act which disturbed the assemblage.
    2. Same; what persons constitute a pari of an assemblage; question for the jury. — Under an indictment for disturbing religious worship, where it is shown that the assemblage of people charged to have oeen disturbed had met for the purpose of holding singing and preaching exercises, and the only evidence of any disturbance was of persons without the house where the exercises were conducted, whether, such persons at the time of the alleged disturbance constituted a part o'f the assemblage met for religious worship is a question of fact for -the determination of the jury.
    3. Same; same; same. — In such a case, if the persons without the h-o-use had separated themselves from those within and no longer participated in the religious exercises for which the congregation had met, and had no intention to again participate therein, and were engaged in the discussion of other matters, then the disturbance of one of more of such persons would not -come within the prohibition of the statute; but the separation or withdrawal from the assemblage of one or more persons temporarily and for personal comfort or the like, with the intention of returning, they still being at the place of worship, constitute such person or persons a part of the assemblage, and their disturbance is within the prohibition of the statute.
    4. Same; what constitutes offense. — An assemblage of persons met s-olely for the purpose of instruction as to how to be able to sing religious -songs, is n-o-t an assemblage met for purposes of religious worship, within the meaning -of the statute, prohibiting the disturbing of religious worship. (Code, § 4654.;
    
      5. Disturbing religious worship; charge to the jury. — On a trial under an indictment for disturbing religious worship, a charge is erroneous and properly refused which instructs the jury that “disturbance of some person or persons at or near an. assemblage met for purpose of religious worship who is not at the tim'e taking any part in the worship nor giving any attention thereto would not constitute a disturbance of the assemblage.”
    6. Same; same. — On a trial under an indictment ror disturbing religious worship, a charge is erroneous and properly refused which instructs the jury that “the presumption in 'case of this character is that persons sitting on the outside of a house in which an assemblage is met for the purpose of religious worship engaged in conversation not connected with the religious worship are not part of the assemblage;" the law indulging no, such presumption as stated in said charge.
    7. Misleading and argumentative charges are properly refused.
    Axt'kal from tlie Circuit Court of Marshall.
    Tried before the Hon. J. A. Bilbro.
    The facts, of the case are sufficiently stated in the opinion. In addition to the portion of the charge copied in the opinion, to which the defendant separately excepted, the defendant, separately excepted to the following portions of the court’s general charge: (B.) “If a person) retires -from the meeting for purpose of his own with the1 intent, of returning, he continues a part of the assemblage.” (C.) “If a person in an assemblage wants a'drink of water and goes to a convenient spring inteding to return, he continutes a part of the assemblage, and a disturbance of him while out for such purpose would be a disturbance of the assemblage.” (D. ) “If any one person in an assemblage met for religious worship is disturbed, then the law says the assemblage is disturbed.” (E.) “Disturbing a member of that congregation does not mean exciting him but only directing his attention from the purpose of the assemblage.”
    The' defendant requested the court to give to the jury the following written, charges, and separately excepted to the court’s refusal to give each of them as asked: (1.) “If the jury believe the evidence in the case, they must find the defendant not guilty.” (2.) “The court charges the jury that if only the persons outside the house were disturbed, aud if at the time they were not a part of the assemblage met for the purpose of religious worship, then this would not warrant the conviction of the defendant.” (3.) “The statute against disturbing religious worship is not intended to protect loiterers in the vicinity of an assemblage met for religious worship.” (4.) “The court charges the jury that the disturbance of one or more persons loitering about a house where an assemblage is met, for the purpose of religious worship' would not constitute a disturbance of the assemblage.” (5.) “Disturbance of.some person or persons at or near an assemblage, met for the purpose of religious worship who is not at the time talcing any part in the worship, nor giving any attention thereto', would not constitute a disturbance of the assemblage.” (6.) “Persons on the outside of the house talking among themselves afeout other matters and mot about, the purpose of the assemblage, and paying no, attention to the assemblage, would not be a part- of the assemblage, and a. disturbance of such persons only would not constitute a disturbance of the assemblage.” (7.) “Loiterers and idlers on the outside of a house in Avhich is met an assemblage for religious worship Avho are not paying any attention to the services, are not part of the assemblage.” (8.) “The court charges the jury that the presumption in case of this character, is that persons sitting on the outside of a house in which an assemblage is met for the purpose of religious Avorship, engaged in conversation not connected Avith the religions Avorship, are not part of the assemblage.” (9.) “The court charges the jury that disturbing one or more persons on the outside of the house avIio Avére loitering on the outside, and not engaging or participating in any wise AAÚth the service would not constitute a disturbance of the assemblage.” (10.) “The court charges the jury that persons loitering on the outside of a house in Avhicli is met, an assemblage for the purpose of religious Avorship, are presumed not to be any part of the assemblage, and the burden of proving such persons a part of the assemblage is on the State and the State must proAre this beyond all reasonable doubt.” (11.) “The court, charges the jury that proof of disturbance of one or more persons in the vicinity of an assemblage met for the purpose of religious worship', does not constitute a disturbance of the assemblage unless the evidence shows beyond all reasonable doubt that at the time such person or persons were disturbed, they were a part of the assemblage, amid to constitute them such the State must prove beyond all reasonable doubt that they were at the time met for the purpose of religious worship, or that they were on their way to or from the assemblage, or that they were at the time bona fide engaged in doing something connected with the purpose of the assemblage.”
    ■From a judgment of conviction the defendant appeals.
    Street & Isreee, for appellant,
    cited McPherson v. State, 54 Ala. 211; Elam v. State, 26 Ala. 48; Peacher v. State, 61 Ala.. 22; Bonham v. State, 65 Ala. 456; 9 Am. & Eng. Ency. of Law (2d ed.) 665; Brovm v. State, 46 Ala. 175.
    Chas. G. Brown, Attorney-General, for the State.
    It is not necessary that the .whole congregation be disturbed, the disturbance of one or a few is sufficient.— 2 McClain Or. Law, § 1126, p. 202; 2 Bish. New Or1. Law, Sec. 309 par. 2; G'ockreliam v. State, 7 Hump. 11; State v. 'Wright, 41 Ark. 410; Johnson v. State, 92 Ala. 83; Lancaster v. State, 53 Ala. 399; Kinney v. State, 38 Ala. 224.
    The whole conduct of the defendant during the time and his declarations were admissible in evidence to show his animus, and the Avillfulness of his conduct. It Avas no case for an election. — Price v. State, 107 Ala. 162.
    The charges requested by «the defendant Avere properly refused. — Johnson v. State, 92 Ala. 83; Williams v. State 83 Ala. 68; Goulding v. State, 82 Ala. 48; Morris v. State 84 Ala. 457.
   DOWDELL, J.

The defendant Avas tried and convicted on an indictment for disturbing religious Avorship. — Grim. Code, § 4654. The assemblage of people charged to have been disturbed, as stated in the bill of exceptions, had met “for an all day singing and preaching;” the singing occupying the forenoon and a part of the afternoon, until 3 o’clock, when the preaching began, with an intermission between the singing exercises and the preaching. The Sitare, on the trial, was permitted to show, against the objection of the defendant, the conduct and declarations of the defendant a.t different times, covered by the time occupied in the singing exercises and preaching. Evidence tending to show wilfullress omi the part of the defendant in the doing of an act causing the disturbance, is relevant and competent. — Price v. State, 107 Ala. 162. There was no error in the rulings of the court, as the purpose of the evidence objected to, ivas to show willful misconduct, and such ivas its tendency. There ivas no election made by the State as to which act of the defendant as causing the disturbance or interruption it would prosecute for, and oven if there had been, such election would not affect the question of the competency and relevancy of the evidence as tending to- show willfulness in the doing of the act relied on as causing the disturbance.

There was no pretense of a disturbance of any person of the assemblage, within the house, where both the singing exercises and the preaching were had. Tbe only evidence of any disturbance, was of persons without the house. Whether these persons at the time of the alleged disturbance constituted a part of the assemblage met for religious worship, was a question of fact for the determination! of the jury. If the persons without the house had separated themselves from those within, who were engaged in religious worship, and no' longer participated in the purposes for which the congregation had met, but had wholly disconnected themselves from the assemblage with no intention of again participating in the purposes of the meeting, and were engaged in the discussions of other matters, -all of which being questions of fact to be determined by the jury from the whole evidence, then the disturbance of one or more of such-persons, would not come within the prohibition of the statute. Charge 2 requested by the defendant, hypothesizing all of tírese facts, correctly stated the law, and its refusal rvas error. We are not to be understood as assorting that a separation, or withdrawal from the congregation by one or more persons of the congregation temporarily, and for personal comforts, or the like, and with the intention of returning, and in the language of the statute, still being at or near the place of worship, would constitute such persons or persons not a part of-the assemblage. So long as such persons form a part of the assemblage, though temporarily separted from the congregation, being still in close proximity, they are within the protection of the statute.

The court in its oral charge to- the jury, among other tilings, stated, “that if the assemblage ivas met for the purpose of instruction as to how to be able to sing religious songs, then that was an assemblage met for religious worship, and one is a member of that assemblage if present, whether he is in the house or out of it.” This was a distinct and substantive statement of a legal proposition, and is not limited or modified in any way, when taken in connection with other p ortons of the general charge. It cannot be affirmed as matter of law that a meeting- together of persons solely for the purpose of “instruction as to hoio to be able to sing religions songs” constitutes an assemblage met for the purpose of religious worship. If the purpose of the meeting be solely for instruction in the art of singing, although confined to the singing of sacred songs, this would not be an assemblage met for religious worship within the meaning of the statute under1 which the indictment was preferred-

There is no merit in the exceptions reserved to other portions of the general charge.

Charges 3, 4, 7, 9, requested by the defendant were misleading. Besides the mere fact of loitering would not necessarily disassociate the loiterers from the assemblage met for religious worship. Charge 5 misstates the law. If the persons disturbed were a part of the assemblage met for religious worship', whether at the time taking part in the service or not, it would be a violation of the statute. Charge 6 was misleading and argumentative, and whs therefore properly refused. Charges 8 and 10 are faulty a.nd were properly refused. The law indulges no such presumption as that stated in the charges. Charge 11 ivas clearly misleading and was properly refused. Moreover, it was not necessary that the persons disturbed should have been bona -fide engaged in doing something connected with the purpose of the assemblage.

For the errors pointed out the judgment of the court must be reversed and the cause remanded.  