Appeal from the circuit court of Perry county.

Hon. Paul B. Johnson, Judge.

Lark Sowell was indicted for disturbing public worship. From a judgment sustaining a demurrer to the indictment the state appeals.

The facts aré fully stated in the opinion of the court.

The indictment again'st the defendant will be found from the record to be in the following words (omitting the formal part):

“That Lark Sowell on the 4th day of September, 1911, in Perry county aforesaid did willfully and unlawfully disturb a congregation of persons lawfully assembled at Prospect Church for religious worship, by then and there talking in a loud tone of voice, in the presence and hearing of said congregation against the peace and dignity of the State of Mississippi.”

A demurrer was sustained by the trial court, doubtless because in his judgment the said indictment is vague aud uncertain, failing to show how the defendant disturbed the congregation of people. This indictment is drawn under section 1113 of the Code of 1906. Certainly every element to charge the offense of disturbing religious worship is charged in the foregoing indictment, unless it be that the indictment is too. vague and uncertain in not showing how the defendant disturbed the congregation of persons lawfully assembled, etc.

I submit that when the indictment charges,. “By then and there 'talking in a loud tone of voice,” that this is sufficient and that the defendant is then apprised of what the congregation is complaining of. This court in the case of Connelly v. State, 66 Miss. 96, held that an indictment drawn under section 2767 of the Code of 1880, which is in the precise words of section 1113 of the Code of 1906, that an indictment was bad for the reason that the indictment was vague and uncertain in not showing how the defendant disturbed the congregation; a comparison, however, of the indictment found reported in that case and the indictment in the case at bar will show that the words “by then and there talking in a loud tone of voice” is found in the indictment at bar and no such descriptive words of the offense is found in the indictment which this court held in the Connelly case to be insufficient.

I submit that one can disturb a congregation of persons lawfully assembled for religious worship by talking in a loud tone of voice as well as by other disturbances. Suppose that two persons should go to church, get near the minister, who might be conducting religious services, and engage in a loud tone of voice— in a small church? Willfully, this would be as much a disturbance as if they were to beat drums on the outside.

If the rulings of the court in sustaining the demurrer to the indictment at bar be correct then persons are immune from punishment who might willfully carry on a conversation in a loud tone of voice, even louder than the minister or person who may be other wise engaged in worshiping Almighty God, and if such be the law it is a bad commentary upon our jurisprudence.

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