Dagley v. State

• Decision Date: 29 October 1921
• Citation: 234 S.W. 333,144 Tenn. 501
• Parties: DAGLEY v. STATE.
• Court: Tennessee Supreme Court

234 S.W. 333

144 Tenn. 501

DAGLEY v. STATE.

Supreme Court of Tennessee.

October 29, 1921

Error to Criminal Court, Rhea County; J. T. Raulston, Judge.

Bob Dagley was convicted of disturbing public worship, and brings error. Affirmed.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

L. D SMITH, Special Justice.

The plaintiff in error, Bob Dagley, was indicted and convicted and adjudged to pay a fine of $20 for the offense prescribed by section 4853 of Code 1858 (Shannon's § 6776), which reads as follows:

"If any person willfully disturb or disquiet any assemblage of persons met for religious worship, * * * by noise, profane discourse, rude or indecent behavior, or any other act, at or near the place of meeting, he shall be fined not less than twenty nor more than two hundred dollars, and may also be imprisoned not exceeding six months in the county jail." In defense to this indictment the plaintiff in error pleaded a former conviction under the provisions of section 1511 of Code 1858 (Shannon's § 2566), which reads as follows:

"All justices of the peace, sheriffs, coroners, and constables are required to arrest immediately any person in their knowledge or observation disturbing a congregation assembled for public worship, or violating any rule or regulation adopted by such denomination for their own government, or the preservation of good order. Such persons shall be fined by the justice before whom brought not exceeding five dollars, or be bound over for his appearance at court, to be proceeded against as a rioter, for the offense."

The circuit judge overruled this plea of former conviction made by the plaintiff in error, and he was put to trial upon the indictment, with the result above stated. He has appealed to this court, and here insists that the offense for which he was convicted before the justice of the peace is the same as that on which he was convicted in this case, and that by virtue thereof he is entitled to an acquittal of the present charge.

The record presents for determination the questions pretermitted by this court in the case of State v. Layne, 96 Tenn. 674, 36 S.W. 392, wherein the court said:

"Pretermitting all questions as to whether or not the offense is embraced in that section [section 1511 of the Code] and in section 4853 are the same, and as to whether or not, if they are the same, the provision of the former section that the justice may fine the offender 'not exceeding five dollars' was superseded by the subsequent provision of the latter section that 'he shall be fined not less than twenty nor more than two hundred dollars,' etc., it is entirely sufficient for the refutation of that insistence, and for all present purposes, to say that the former provision is not applicable, and cannot be made available under the pleadings in this case."

In the case just referred to defendant had been previously convicted before a justice of the peace under the same provision of the Code that he was indicted under, and therefore it was held that he could not rely to defeat the indictment to which he pleaded a former conviction of the same offense and under the same statute, since in his former conviction he had not been given the minimum fine prescribed by the statute under which he was convicted.

If the offenses defined in these two sections of the Code are the same, and that portion of section 1511 fixing the maximum fine at $5 is in force, then it is manifest that the plea of the plaintiff in error in this case was improperly overruled.

The substance of the offenses charged in the two sections of the Code is "disturbing public worship." A person could not violate the provisions of section 1511 without violating the provisions of section 4853; neither could he violate the provisions of section 4853 without violating the provisions of section 1511.

We are unable to make the distinction suggested by the Attorney General, that the offense embraced in section 1511 is different to the offense embraced in section 4853 by reason of the language of the former section requiring officers to arrest persons disturbing a congregation assembled for the purpose of public worship "in their knowledge or observation." These words relate to the method of procedure rather than to a designation of the offense. The offense is the same whether it is committed within the knowledge or observation of an officer or not. Any person disturbing a congregation assembled for public worship would fall within the provision of section 4853 whether the acts were committed in the knowledge or observation of an officer or not. Neither can we conclude that a person arrested and convicted for disturbing a congregation assembled for religious worship under section 1511 could be properly convicted under section 4853, although the offense was not committed in the knowledge or observation of the arresting officer, if the provision of section 1511 with respect to the amount of the fine is to be considered as in full force and effect.

We come therefore to consider whether or not there is such irreconcilable conflict between the provisions of the two statutes with respect to the amount of the fine as that both cannot stand, and, if not, which one shall stand.

A correct history of the legislation embraced in these two statutes will be found in the opinion in the Layne Case. There we learn that section 1511 of the Code is practically a compilation of chapter 35 of the acts of 1801 and chapter 60 of the acts of 1815. The former act provided:

"That if any person shall interrupt a congregation assembled for the purpose of worshipping the Deity, such person shall be dealt with as a rioter at common law."

Sections 1 and 2 of the act of 1815 are in the following language:

"1. It shall be the duty of all justices of the peace, and they are hereby severally required to observe the same, that whenever any wicked or disorderly person or persons, shall either by words or gestures, or in any other manner whatever disturb any congregation which may have assembled themselves together for the purpose of worshipping Almighty God, or who shall encourage, aid or assist in such disturbance, to the violation of any rule or regulation, which may have been adopted by them for their own government, and good order Provided, such rule or regulation, be previously made public whether such offenses may have been committed within the presence of said justices of the peace while said congregation is so assembled or may come to their knowledge by information of others, shall immediately cause such offender or offenders to be apprehended and brought before them or some other justice of the peace for the county in which such offense may be committed, who shall on the proof of the offense, fine them not exceeding five dollars, or bind them in sufficient security for their appearance at the next circuit court, when they shall be proceeded against according to the provisions of the act [of 1801,...