Mullinix v. State

22 S.W. 407, 32 Tex. Crim. 116, 1893 Tex. Crim. App. LEXIS 229

Opinion

DAVIDSON, Judge.

The information in this case was framed under the provisions of article 180 of the Penal Code, which prohibits the willful disturbance of a congregation assembled for religious worship, when conducting themselves in a lawful manner.

It is one of the essential elements of this offense, that the congregation conduct themselves in a lawful manner. This must be alleged, in order to constitute a valid indictment or information under said statute. The recited offense in the recognizance is ‘‘ willfully disturbing a congrega tion assembled for the purpose of public worship.” The necessary allegation, that the congregation were conducting themselves in a lawful manner, was omitted. The offense not being one eo nomine, it is essential that its constituent elements be set out in the recognizance; otherwise the obligation will be fatally defective. Turner v. The State, 41 Texas, 549; Killingsworth v. The State, 7 Texas Cr. App., 28; Koritz v. The State, 27 Texas Cr. App., 53; Edwards v. The State, 29 Texas Cr. App., 452.

The motion of the Assistant Attorney-General to dismiss the appeal is sustained, and the appeal is dismissed.

Dismissed.

Judges all present and concurring.