
    3061.
    CUMMINGS v. THE STATE.
    For a person to defend himself against a felonious assault, even though in doing so he fires a pistol and thereby disturbs a near-by congregation assembled for divine worship, is not ordinarily to be considered such conduct as violates § 418 of the Eenal Code of 1895.
    Decided January 17, 1911.
    Accusation of disturbing divine worship; from city court of Dublin — Judge Hawkins. November 4, 1910.
    
      J. ff. Adams, for plaintiff in error.
    
      W. O. Davis, solicitor, contra.
   Powell, J.

The defendant was charged with a violation of § 418 of the Penal Code of 1895, which reads as follows: “Any person who shall, by cursing or using profane or obscene language, or by being intoxicated, or otherwise indecently acting, interrupt, or m any manner disturb, a congregation of persons lawfully assembled for divine service, and until they are dispersed from such place ot worship, shall be guilty of a misdemeanor.” There was testimony to the effect that at a point variously efetimated as being from 300 yards to a half mile away from the church in question another person made an unjustifiable, deadly assault upon the defendant, and that the defendant returned fire with his pistol. According to the State’s theory, the defendant’s “indecently acting” consisted in firing the pistol thus near the church. The defendant duly requested the court to instruct the jury as follows: “If you .believe, from the evidence in the case, that the defendant shot his pistol to defend himself, and that he was justified in so doing, under the law, and that in so doing he had no intention of disturbing divine worship, but only shot in his own defense, then he would not be guilty of the crime charged; all of which are questions of fact to be determined by the jury.” The judge refused the request.

We think the court erred. The statute prohibits “indecently acting,” and this phrase, as related to the subject-matter of the statute, has a wide range of meaning; but we do not think that it is broad enough, even in its most extended meaning, to prohibit a person from exercising the highly esteemed right of self-defense against a felonious assault. Generally speaking, to shoot justifiably is not to act indecently. Divine worship is sacred, but so also, is the defense of one’s own life.

It is different where persons go to a church or near a church and engage in a fisticuff or similar encounter over some trivial provocation. In such cases it may be indecent to resent with a battery a provocation by words or by some slight assaplt, though the -provocation might, so far as a prosecution for the battery is concerned, be a complete defense. In such cases the quarreling and fighting is, of itself, indecent and out of place. This is in effect the ruling in'the Minter case, 104 Ga. 143 (30 S. E. 989). Circumstances alter cases; and a very different proposition is presented where one is called on to protect himself from a felony.

Judgment reversed.  