Opinion
8 Div. 409.
March 2, 1937.
Appeal from Law and Equity Court, Franklin County; W. H. Quillin, Judge.
Floyd Nix was convicted of disturbing religious worship, and he appeals.
Affirmed.
Wm. Stell, of Russellville, for appellant.
The disturbance must have been willfully done to authorize a conviction. Harrison v. State, 37 Ala. 154; Bloodsworth v. State, 21 Ala. App. 275, 107 So. 321; Pike v. State, 22 Ala. App. 25, 111 So. 756. A witness cannot testify as to what a third person said because same would be hearsay and, if such third person made such statement, he is available as such witness. Sanders v. State, 202 Ala. 37, 79 So. 375.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
The statement attributed by the witness to the preacher was a part of the res gestæ and was properly admitted. Campbell v. State, 133 Ala. 81, 87, 31 So. 802, 91 Am. St. Rep. 17; Maddox v. State, 159 Ala. 53, 48 So. 689; Wray v. State, 2 Ala. App. 139, 57 So. 144. The evidence shows the presence of every element of the offense charged.
The defendant was charged by affidavit with having willfully interrupted or disturbed an assemblage of people met for religious worship, by noise, profane discourse, or rude or indecent behavior at or near the place of worship contrary to law. Section 3881 of the Code of 1928 provides that: "Any person who wilfully interrupts or disturbs any assemblage of people met for religious worship, by noise, profane discourse, rude or indecent behavior, or any other act, at or near the place of worship, must, on conviction," etc.
The appellant in his brief states correctly the proposition that the act of disturbance must have been willfully done. There is no question but that the assemblage alleged to have been disturbed, was such as is designed to be protected by the section of the Code hereinabove set out. The evidence on the part of the State tended to prove this charge. As to Whether or not this was true, was a question properly submitted to the jury. Bloodsworth v. State, 21 Ala. App. 275, 107 So. 321.
Objections and exceptions were reserved to the action of the court in refusing to exclude from the testimony of a State's witness the following: "They just continued to talk, and Brother Brown stopped about twice and asked them to be quiet. That he had always been taught to be quiet when other people were talking." This testimony was given by the State's witness in his narrative as to what took place there in the church at the time of the alleged disturbance. This was not hearsay, but was a part of the res gestae. Moreover, we see no way by which this ruling could injuriously affect the defendant's substantial rights.
We find no error in the record, and the judgment is affirmed.
Affirmed.