Nash v. State

24 S.W. 32, 32 Tex. Crim. 368, 1893 Tex. Crim. App. LEXIS 282

Opinions

Motion to dismiss appeal, because the offense named in the recognizance is not that charged in the information.

The information charges, that appellant did, by loud, vociferous talking and swearing, willfully and unlawfully disturb a congregation assembled for religious worship. The recognizance states, that appellant "stands charged with the offense of willfully disturbing a congregation assembled for religious worship," etc.

The objection to this recognizance is, that it does not set forth the manner or means by which the congregation was disturbed. If a congregation assembled for religious worship, conducting themselves in a lawful manner, is willfully disturbed in any manner, the offense is precisely the same as if it had been disturbed by loud, vociferous talking and swearing. While it may be necessary for the indictment to allege the manner, this is not required in a recognizance. The McGee and McKay cases, 7 Texas Criminal Appeals, 99, and 8 Texas Criminal Appeals, 672, are not in point. In those cases the recognizances were adjudged bad because they did not state that the appellants willfully disturbed the congregation. In the Mullinix case, ante, p. 116, the recognizance failed to state that the congregation was conducting themselves in a lawful manner.

Motion overruled.