
    The State vs. John Gager.
    The act of 1857 makes it a criminal offense to willfully interrupt or disturb any public, private or select school while the same is in session. A complaint charging a willful disturbance of “ a school met and assembled for culture and improvement in sacred and church music,” held fatally defective in not alleging that the school was in session.
    
    It is essential to a sehool within the intent of the statute that there should be a teacher and pupils. A meeting of persons assembled for the purpose of singing together, for their common improvement in the art of singing, but without a teacher, is therefore not a school within the statute.
    And a meeting for culture and improvement in' sacred and church music, is not a meeting “ for the promotion of a moral or benevolent object,” within the intent of the 145th section of the act with regard to crimes and punishments, which makes the disturbance of such a meeting a criminal offense.
    Grand-juror’s complaint to a justice of the peace, appealed by the defendant to the superior court. The complaint alleged that the defendant, at-the town of Bozrah, on, &c., (i with force and arms, did willfully interrupt and disturb an assembly, meeting and school,- then and there met and assembled for the promotion of a moral and benevolent object, viz. for culture and improvement in sacred and church music ; which dis- [ *233 ] turbance and interruption the defendant *caused by talking in a loud tone of voice, and by impertinent, noisy and disorderly behavior while in said assembly.”
    The jury having found the defendant guilty, he moved in arrest of judgment for the insufficiency of the complaint.
    The 145th section of the act with- regard to-crimes'and punishments provides that “ every person who shall willfully interrupt or disturb any assembly of people met for the public worship of God or for the promotion of any moral or benevolent, object, shall pay a fine,” &c.
    
      An act passed in 1857 provides that “ every person who shall, at any time, willfully interrupt or disturb any district school, or any public, private or select school, while the same is in session, shall pay a fine,” &c.
    It appeared upon the trial that the assembly disturbed was an ordinary singing school, and it was not denied that it was disturbed'by the defendant. The judge charged the jury that the complaint could not be sustained under the former of the acts mentioned, but that it was sufficient to warrant a conviction, upon the facts admitted, under the latter. The defendant excepted to this charge and moved for a new trial, which motion, with the motion in arrest of judgment, was reserved for the advice of this court.
    
      Wait and Halsey, in support of the motions.
    1. The complaint is bad for uncertainty. It does not state distinctly which of two offences is intended, nor under which of the two statutes it is brought. Rex v. Marshall, 1 Mood. C. C., 158. Morse v. The State, 6 Conn., 9. State v. Harris, Law Reporter, Nov., 1851, p. 378. Commonwealth v. Symonds, 2 Mass., 163. Commonwealth v. Bolkom, 3 Pick., 281.
    2. The facts proved do not support the averment that the meeting disturbed was an assembly of people met for the promotion of a moral and benevolent object. A singing school is not such a meeting. The allegation that the‘assembly was of that character is a material part of the description of the offense and can not be rejected as surplusage, and the evidence not *supporting sueh allegation, there is a fatal variance. [ *234 ] State v. Noble, 15 Maine, 476. U. States v. Keen, 1 McLean, 429.
    3. The complaint, regarded as founded upon the statute of 1857, is fatally defective in not alleging that the school, when disturbed, was in session, an averment which must have been yet made and proved. The school might be met or assembled, and not be in session. State v. Bromley, 25 Conn., 6. State v. Brown, 4 Porter, 410. Gatewood v. The State, 4 Hamm., 386. Crandall v. The State, 10 Conn., 340.
    
      Willey, state attorney, and Crocker, contra.
    
    
      We contend that the complaint is good ünder both statutes, but that it is plainly so under that of 1857. The allegations of the complaint, with regard to the assembly being one met for the promotion of a moral and benevolent object, may be rejected as surplusage, and are, moreover, limited and explained by the videlicet, so that the complaint is substantially the same as if it charged merely that the defendant disturbed a school met and assembled for culture and improvement in sacred and church music ; and an averment that the school was in session ” was not necessary in terms, that fact being sufficiently averred in the allegation that the school was" met and assembled.” The form of the complaint is substantially the'same as. that sustained by the court in the case of The State v. Gager, 26 Conn., 607.
   Sanford, J.

Under the judge’s charge, the jury must have found the accused guilty of the offense described in the act of 1857, chapter 29, which provides that every person who shall at any time willfully interrupt or disturb any-district school, or any public, private or select school, while the same is in session, shall pay a fine,” &c. In the case of The State v. Gager, 26 Conn., 607, this court decided that a singing school, kept and taught for culture and improvement in sacred and church music,” is a school, within the meaning, and is entitled to the protection, of that statute. But in the case now before us, the accused contends that the information does not charge [ *235 ] *the interruption or disturbance of such a school, and we think he is right.

That the assemblies designated in, and intended to be protected by, the statute under consideration, are all of the same character in this respect, that they all require a master or instructor who teaches, and pupils who receive instruction at his hands, is manifest from the structure of the act, the immediate connection in the same sentence of all the kinds or classes of schools enumerated in the act, and the consideration that the same penalty is provided for the interruption or disturbance of each of them. The term 44 district school ” has in Connecticut a definite, settled and well understood signification, and to every intelligent mind conveys the idea of an assembly of pupils, under the government, control and instruction of a master, teacher or instructor; and the same idea is communicated to the mind by the terms 44 public school,” “'private school ” and 44 select school.” These schools may differ from each other in all other respects, but, in this one point, that they have teachers and pupils, they are all alike. Indeed the term school ” alone, according to American usage, more generally denotes the collective body of pupils in any place of instruction, and under the direction and discipline of one or more instructors. Webster’s Diet., in verbuin.

In Charles Gager’s case, the assembly interrupted was described as a certain singing school kept and taught,” Spc., thus implying the presence of a master, teacher or instructor, and of pupils, learners or scholars, assembled in one place, and in the exercise and enjoyment of their respective and correlative duties and privileges. In this case the species of the assemblage is indicated only by the object for which the individuals are alleged to have assembled—to wit, “ for culture and improvement ”—not, in “ a singing school kept and taught,” but, it may be, in a social gathering at a neighbor’s house, where the culture and improvement is sought for in, and results from practice, and not.from the precepts or instructions of a teacher. Meetings of this kind, for mutual culture and improvement in sacred and church music, are, we suppose, of frequent occurrence in every neighborhood, and it would be *an abuse of language to call such meetings “ schools.” [ *236 ] If the prosecutor intended to charge the disturbance of a school of either of the kinds mentioned in the statute, he should have said so in unequivocal terms, instead of leaving it to be made out by inference or conjecture.

But if the assembly charged to have' been interrupted and disturbed was a school within the meaning of the act of 1857, still the information is fatally defective, because it contains no averment that such school was in session at the time of the interruption complained of. It is only while such schools are “ in session,” that they are protected by the penalties of the act. The allegation in the information is that the accused did interrupt and disturb an assembly, &c., met and assembled together for culture and improvement, &c. Now there is a clear distinction between the assembling together of the individual members of a collective body, and their due organization in such body. All the pupils of a school may have assembled in their school room, ready to enter upon the duties of the day ; their teacher also may be there; and yet it may be that the school is not “ in session.” • All the members of the House of Representatives may have assembled, and the speaker be present, but until he shall have taken his seat, and declared, or in some way indicated, the readiness of the house to proceed to business, the house is not “ in session.” Indeed, the legislature recognizes this distinction, when, in express terms, it provides for the protection of a school against disturbance only “ while the same is in session.” Crandall v. State, 10 Conn., 339. State v. Bromley, 25 Conn. 6. It is true that this information is in this respect like the information in Charles Gager’s case, but this point was not made by the counsel in that case, nor adverted to by the court.

Nor is a meeting for culture and improvement in sacred and church music an assembly “for the promotion, of any moral or benevolent object,” ■within the 145th section of the. statute relating to crimes and'punishments. . The object of such a meeting is musical education, not moral training—the acquisition of skill, not-the’ dispensation of charities. .

The information is insufficient, and’the motion in arrest must prevail.

In this opinion the other judges concurred-; except Ellsworth, J., who did nob sib in the case, having' sat upon the trial below.

Information insufficient.  