Johnson v. State

• Decision Date: 10 December 1964
• Docket Number: 7 Div. 650
• Citation: 277 Ala. 655,173 So.2d 824
• Parties: Gerald JOHNSON v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 824

173 So.2d 824

277 Ala. 655

Gerald JOHNSON v. STATE of Alabama.

7 Div. 650.

Supreme Court of Alabama.

Dec. 10, 1964.

Rehearing Denied March 18, 1965.

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for petitioner.

Arthur D. Shores, Birmingham, Jack Greenberg and Norman C. Amaker, New York City, opposed.

MERRILL, Justice.

The defendant was convicted of the offense of prespass after warning in the Circuit Court of Talladega County. He appealed to the Court of Appeals and that court reversed. The State sought our review by writ of certiorari, which we granted on July 30, 1964. The defendant was charged with having refused to leave the First Wesleyan Methodist Church of Talladega after being requested to do so under Tit. 14, § 426, Code 1940.

The Court of Appeals reversed on the 'technical lack of proof of authority in the minister to order the visitors from the church.'

Where there is no dispute about the facts, we may examine the record for a more complete understanding of those features of the record which have been treated in the opinion of the Court of Appeals. Helms v. State, 270 Ala. 603, 121 So.2d 106; Southern Railway Co. v. Terry, 268 Ala. 510, 109 So.2d 919; Vardaman v. Benefit Ass'n of Railway Employees, 263 Ala. 236, 82 So.2d 272; Cranford v. National Surety Corporation, 231 Ala. 636, 166 So. 721; Hood v. State, 230 Ala. 343, 162 So. 543. The facts are not in dispute here. The State called three witnesses; the pastor, a visitor to the church and Lieutenant Morris of the Talladega Police Department. The defendant presented no evidence and there is no dispute about the facts in the evidence or by the defendant who filed no brief in the Court of Appeals or in this court on application for writ of certiorari.

Defendant has filed a brief in this court after the writ of certiorari was granted. The brief defends the holding of the Court of Appeals on the single basis of the opinion, and also raised new questions for the first time. We do not consider these new questions under our decisions. First, in considering the petition for certiorari, we pass on only the grounds on which certiorari is sought. Ex parte Thaggard, 276 Ala. 117, 159 So.2d 820, and cases there cited. Secondly, on certiorari to the Court of Appeals, we consider only the questions treated in the opinion of that court which are challenged in the petition for the writ and which are argued in brief filed in support of the petition. Ex parte Stephenson, 252 Ala. 316, 40 So.2d 716; Kelley v. Osborn, 269 Ala. 392, 113 So.2d 192, and cases there cited.

Here, the Court of Appeals decided the case on the lack of proof of authority in the minister to order the visitors from the church, and that is the single question treated in its opinion. That question is the only one challenged in the petition for writ of certiorari, and is the only question argued in brief filed in support of the petition. Accordingly, any new questions raised at this late date in defendant's brief are not within the purview of review by this writ of certiorari. Harris v. State, 247 Ala. 194, 23 So.2d 514, and cases there cited.

We went to the record for a better understanding of the facts because the opinion of the Court of Appeals went off on the lack of authority of a 'minister', when the use of the word in the facts seemed to denote 'pastor' instead of 'minister.' The record sustained this view. The Reverend Vess did testify that he was a minister and minister of the First Wesleyan Methodist Church of Talladega, but he also testified that he was the pastor of the church on Easter Sunday when the defendant and two others were asked to leave the eleven o'clock service.

We find no disagreement with the definition by the Court of Appeals that a minister in ecclesiastical law is one ordained by some church to preach the gospel. And if the Reverend Vess had only been a minister, we could agree with the result reached by the Court of Appeals.

But there is a difference between a minister and a pastor. Pastor is defined in Webster's New International Dictionary, 2nd Ed.,--'the minister or priest in charge of a church or parish'; In Black's Law Dictionary, 4th Ed.,--'applied to a minister of the Christian religion, who has charge of a congregation or parish.' In First Presbyterian Church of Perry v. Myers, 5 Okl. 809, 50 P. 70, 38 L.R.A. 687, the court in holding that a Presbyterian minister was not the pastor of a particular Presbyterian church, said: '* * * a minister is one who, having been ordained to the ministry, undertakes to perform certain services for another, while a pastor is one who has been 'installed according to the usage of some Christian denomination in charge of the specific church or body of churches.' This definition was cited with approval in Griswold v. Quinn, 97 Kan. 611, 156 P. 761, and the difference between priest and pastor is stated in Dupont v. Pelletier, 120 Me. 114, 113 A. 11.

Ecclesiastically, all pastors are ministers or priests, but all ministers or priests are not pastors. A minister has no authority to speak or act authoritatively for any local church, but its pastor does because he is the designated leader and top official of the local church. The local church here was incorporated, and the pastor may be likened unto the general superintendent or general manager of a business corporation. (It is probably common knowledge that in Methodism, the correct designation of the local pastor is 'the pastor in charge.')

In Morrison v. State, 155 Ala. 115, 46 So. 646, the defendant was convicted for trespass after warning. The general superintendent of the company, Byers, had told another employee of the company, Bennett, to warn all objectionable persons not to trespass upon the premises of the company. This court said:

'H. M. Byers, as is shown, was the superintendent of the railway company. If he, as such agent, warned the defendant not to enter on the lands of the company, he had authority to warn persons not to trespass on the company's property. The company must act through its agents, and a general superintendent of the company would, by virtue of being such superintendent, act within the scope of such superintendence in giving a warning to any one not to trespass. Section 5606, Cr. Code 1896. The superintendent was, by virtue of his office, authorized to instruct Bennett to give the warning to defendant; therefore the objection to the solicitor's question which sought to prove such instructions, was properly overruled.'

The undisputed evidence in the instant case shows that the Reverend Vess was the pastor of the local church; that he told Lieutenant Morris that he would be responsible for the signing of the warrant and the arrest of defendant; that he gave Lieutenant Morris the authority to arrest; that he (Vess) was in charge of the service and the church had left the handling of the matter up to him; that the warrant charging the defendant with trespass...