Jones v. State

• Decision Date: 14 January 1890
• Citation: 44 N.W. 658,28 Neb. 495
• Parties: OWEN JONES ET AL. v. STATE
• Court: Nebraska Supreme Court

44 N.W. 658

28 Neb. 495

OWEN JONES ET AL. v. STATE

Supreme Court of Nebraska

January 14, 1890

ERROR to the district court for Gage county. Tried below before BROADY, J.

REVERSED AND REMANDED.

Pemberton & Bush, and Winter & Kauffman, for plaintiffs in error cited: 2 Bishop, Crim. Pro., secs. 285, 289, 290, 293, 294; Stratton v. State, 13 Ark. 688; State v. Ringer 6 Blackf. [Ind], 109; State v. Sherrill, 1 Jones L. [N. Car.], 508; Cearfoss v. State, 42 Md. 403; Commonwealth v. Richardson, 126 Mass. 34; State v. Armell, 8 Kan. 288; U. S. v. Mills, 7 Peters [U S.], 141; State v. Seamons, 1 G. Greene [Ia.], 418; State v. Bryce, 7 Ohio, pt. 2, 82; Lamberton v. State, 11 Id., 282; Ellars v. State, 25 Ohio St. 388; 1 Dillon, Mun. Corp., sec. 253; Com. v. Oliver, 2 Parsons, Sel. Cases (Pa.), 426; Black, etc., Soc. v. Vandyke, 30 Am. Dec., 265; Hiss v. Bartlett, 63 Id., 776.

Wm. Leese, Attorney General, and Burke & Prout, contra, cited: Maxwell, Crim. Pro., 286; State v. Stubblefield, 32 Mo. 563; Kindred v. State, 33 Tex. 67; State v. Ralcliff, 10 Ark. 530; State, ex rel. Bryant, v. Lauver, 26 Neb. 757; Ex parte Maule, 19 Id., 273; Cropsey v. Wiggenhorn, 3 Id., 117; Wells v. Preston, Id., 444; Horbach v. Miller, 4 Id., 43; Dodge v. People, Id., 220; Walrath v. State, 8 Id., 89; Midland P. R. Co. v. McCartney, 1 Id., 404; Schroeder v. Rhinehardt, 25 Id., 75; M. P. R. Co. v. Hays, 15 Id., 224; State v. Swarts, 9 Ind. 221; Bird v. Church, 62 Iowa 567; Sale v. Church, Id., 26; Hardin v. Church, 51 Mich. 137; Ter Vree v. Geerlings, 55 Id., 562; 22 N. W. Rep., 91.

OPINION

MAXWELL, J.

The plaintiffs in error were convicted of "interrupting and molesting a religious meeting as charged, in the complaint," and sentenced to pay a fine of $ 10 each and costs.

The first ground of error assigned is that the complaint does not charge an offense. The complaint is as follows:

"The complaint and information of David Edwards, made before Richard Whitten, one of the justices of the peace in and for Gage county, Nebraska, who being first duly sworn, on his oath says that Owen Jones and Owen Parry, late of said county, at and within said county on the 11th day of December, A. D., 1887, and on divers other Sundays before said date, did willfully, maliciously, and unlawfully interrupt, molest, and disturb a religious society, to-wit, 'The Welsh Presbyterian church,' and the members thereof, while said members were met to perform the duties enjoined upon them and appertaining to them as members of said religious society, the said Owen Jones and Owen Parry not then and there being members of said religious society, having no right to be present at said meeting.

"He therefore prays that the said Owen Jones and Owen Parry may be arrested and dealt with according to law.

"DAVID EDWARDS.

"Subscribed in my presence and sworn to before me this 12th day of December, 1887.

"RICHARD WHITTEN,

"Justice of the Peace."

The general rule is that the manner of the disturbance should be alleged, as by talking, laughing, or profane swearing. (Cockreham v. State, 26 Tenn. 11, 7 Hum. 11; State v. Stubblefield, 32 Mo. 563; Kidder v. State, 58 Ind. 68; State v. Ringer, 6 Blackf. 109; Lockett v. State, 40 Tex. 4; Maxwell, Cr. Pro., 286.)

We are not prepared, however, to say that the complaint is void. The charge that the plaintiffs in error at certain dates "did willfully, maliciously, and unlawfully interrupt, molest, and disturb a religious meeting, to-wit, 'The Welsh Presbyterian church,' and the members thereof, while such members were met to perform the duties enjoined upon them," etc., states an offense under the statute. (State v. Lauver, 26 Neb. 757, 42 N.W. 762.) The language of the statute is "If any person shall at any time interrupt or molest any religious society, or any member thereof, or any persons when meeting or met together for the purpose of worship, or performing any duties enjoined on or appertaining to them as members of such society," and the complaint is nearly in the words of such statute. The objections to the complaint therefore are overruled.

It will be observed that it is charged in the information that "the said Owen Jones and Owen Parry, not then being members of said religious society, and having no right to be present at said meeting, were present," etc. This allegation having been made, it becomes material in the case.

The proof shows -- in fact, it is admitted -- that the plaintiffs in error had been members of the church in question, but it is claimed they were expelled, and thereby ceased to be members. It is not claimed that any open trial was had, or that the parties accused were notified to appear and defend any accusation against them, nor do any facts appear from which the society would have the right to exclude the parties named from its membership.

Any society may make rules by which the admission and expulsion of its members are to be regulated, and the members must conform to those rules. If, however, there are no rules governing the case, then, before a member can be expelled, a charge must be made against him, and notice given to him to make his defense, and opportunity presented to make the same. (Innes v. Wylie, 1 Car. & K. 257; S. C. 47, E. C. L, 255.) In the case cited a member of a society had used menacing language towards another member of the society, and for this a majority of a general meeting of the society voted that he should no longer be considered a member thereof, but gave him no notice of the intention to take his conduct into consideration or any opportunity to make his defense. It was held that he was still a member, and the order of expulsion was void. (Rex v. Richardson, 1 Burr 540; Rex v. Liverpool, 2 Burr 731; Ang. & A. on Corp., sec. 420.)

The rules of the church, if any, for the admission and expulsion of members were not offered nor introduced in evidence, nor any proof of a public trial upon any charge or any notice to the plaintiffs in error to appear and answer any specific charges. In the absence of any rules the common law prevails.

In State v. Bryce, 7 Ohio 82 pt. 2, it is said "This proceeding is essentially adversary in its character. The justice of the common law permits no investigation of facts which may be followed by the loss of a...