Minter v. State

• Decision Date: 19 July 1898
• Citation: 30 S.E. 989,104 Ga. 743
• Parties: MINTER v. STATE.
• Court: Georgia Supreme Court

30 S.E. 989

104 Ga. 743

MINTER v. STATE.

Supreme Court of Georgia

July 19, 1898

Syllabus by the Court.

1. An indictment which charges that the accused, "by cursing and using profane and obscene language, and by being intoxicated, and by fighting, and by loud talking, and by *** otherwise indecently acting, did interrupt and disturb a congregation of persons *** lawfully assembled for divine service," is sufficient, without specifying the precise language alleged to have been used by the accused, or designating the person with whom he fought.

2. Objections to all the evidence introduced in a case, which do not point out any portion of it as illegal, will not be considered, if any of the evidence was pertinent and admissible.

3. A congregation of persons which had just been lawfully assembled under a bush arbor for divine service could, in legal contemplation, be "disturbed" by such acts as are specified in section 418 of the Penal Code, although the persons composing the congregation may have been dismissed from the arbor, but remained assembled around it for the purposes of administering to the wants of their domestic animals and preparing and eating their own dinners. This is true whether the words, "and until they are dispersed from such place of worship," embraced in that section do or do not properly, in terms, constitute a part of the law relating to the offense therein defined.

4. A charge in an indictment, that the accused disturbed a congregation of persons lawfully assembled for divine service "at" a named church, is sustained by proof that he disturbed a congregation so assembled for such purpose at a bush arbor near such church, both places being within the jurisdiction of the court.

5. A presentment which charges that the accused disturbed a congregation of persons lawfully assembled for divine service "at" a named church is not sustained by evidence showing that a congregation assembled for such service at or near a bush arbor, about 200 yards distant from such church was disturbed, there being no affirmative evidence that this arbor was in fact "at" the church, and all the witnesses, after having their attention directly called to this identical matter, testifying that, in point of fact, it was not at the church. This court should not, in my judgment undertake, as matter of law, to say that the witnesses did not know whereof they testified, or, by construction, give their testimony a meaning different from what they themselves evidently intended it should have. Per Lumpkin, P.J., dissenting.

Error from superior court, Jasper county; John C. Hart, Judge.

R. I. Minter was convicted of disturbing public worship, and brings error. Affirmed.

J. D. Kilpatrick, for plaintiff in error.

H. G. Lewis, Sol. Gen., Green F. Johnson, and Anderson, Felder & Davis, for the State.

FISH J.

1. Was the demurrer to the presentment properly overruled? It charged that the accused, "by cursing and using profane and obscene language, and by being intoxicated, and by fighting, and by loud talking, and by *** otherwise indecently acting, did interrupt and disturb a congregation of persons *** lawfully assembled for divine service," etc. With the exception of the charge of fighting, the language of the presentment is in the terms of the statute. Pen. Code, § 418. "On the general principles of common-law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is." Whart. Cr. Pl. § 220. The terms of the statute upon which this presentment is founded so distinctly individuate the offense which it defines that the use of such terms in charging the offense in the presentment sufficiently notified the accused of what he was called upon to answer. The gist of the offense is the disturbance of a congregation lawfully assembled for divine service, and the manner and means, or the particular acts, by which the disturbance of such congregation may be effected, are set out in the statute, and a general allegation that the disturbance was caused by such acts is all that is necessary, without entering into details. 7 Enc. Pl. & Prac. 41, 42. Section 427 of the Penal Code provides that "any person who shall willfully interrupt any public school," etc. In Huffman v. State, 95 Ga. 469, 20 S.E. 216, the record of file in this court shows that the indictment charged that Huffman "did, by cursing and quarreling and fighting and discharging a loaded pistol, and by boisterous conduct, and by otherwise indecently acting, willfully interrupt and disturb an assemblage of the public school," etc.; that a special demurrer was filed to the indictment, as to all allegations contained in the specifications therein, except the charge of discharging a loaded pistol, on the ground that the charges were not definite and specific enough to put him on notice of the evidence to be introduced under them. The demurrer was overruled, the accused excepted, and this court held that the indictment sufficiently described the mode of interruption or disturbance, and that, under such indictment, evidence was admissible which tended to establish the charge. In State v. Ratliff, 10 Ark. 530, it was held that, in an indictment for disturbing a religious congregation by profanely swearing, it was not necessary to charge the particular language used by the accused; that the disturbance of the congregation was the gist of the offense, and the profane swearing alleged was the means of disturbance; and hence the particular language employed by the offender was not material, and need not be alleged. This ruling was followed in State v. Minyard, 12 Ark. 156, and State v. Hinson, 31 Ark. 638. In Thompson v. State, 16 Tex.App. 159, the above named Arkansas cases were approvingly cited, and the court held that "it is not necessary, in charging the manner of the disturbance, to enter into details. A general statement, as that it was effected by 'loud talking', 'swearing', 'discharging firearms', 'whistling', 'fighting,' or the like, would be sufficient." The special presentment in the case at bar was sufficient, without specifying the precise language used by the accused, or designating the person with whom he fought, and there was no error in overruling the demurrer.

2. The petition for certiorari alleged that: "Over the objection of defendant's counsel, said objection being upon the three following grounds, to wit: (1) The evidence offered is irrelevant, under the allegations in the special presentment. (2) There is a material variance between the evidence offered and the allegations in the special presentment. (3) The evidence offered discloses the fact that the alleged disturbance took place after the adjournment of the divine services, and while the people were engaged in the secular employment of feeding their mules and horses, and while they were preparing and eating dinner; that said evidence was inadmissible because that part of the statute which says, 'and until they are dispersed from such place of worship', although embodied in the Criminal Code, was improperly put there by the codifiers, and it is not the law of this state, and said evidence was irrelevant for the purpose of establishing the truth of the allegations in said special presentment,--all and singular the following evidence from the following named witnesses was introduced by the state, the court overruling all and singular the objections interposed as aforesaid, at the time said evidence was offered." Then follows the testimony of all the witnesses who testified in behalf of the state. This allegation of the petition means, substantially, that all the testimony of all the witnesses who were introduced by the state was objected to because it was irrelevant, for the reasons stated. It is very clear that such an objection cannot be considered, if any of the testimony of any of the witnesses was pertinent and admissible. In Powell v. Railroad Co., 77 Ga. 196, 3 S.E. 759, it was held. "Unless all the evidence of a witness is objectionable, the particular part which is objectionable should be specified in the motion for a new trial or in the bill of exceptions. This may be done either by quotation or by reference to the brief of evidence; but, if by reference, it should be definite and distinct, so that this court could know where to begin and where to stop." The record in the case at bar discloses that, even if any of the testimony of the witnesses introduced by the state was irrelevant, much of it was manifestly pertinent, and consequently there was no error in overruling this ground of the certiorari.

3. Another ground of the certiorari was that the trial judge refused to give in charge to the jury the following written request of counsel for the accused: "It is not sufficient to show that there was a disturbance, if it also be made to satisfactorily appear...