Appellant was convicted of the offense of disturbing religious worship, and fined in the sum of $25, from which he appeals.
There is only one question that need be considered. The appellant was charged, by information, with unlawfully disturbing a congregation assembled for religious worship, by loud and vociferous talking. The evidence introduced in the case conclusively shows that it was a Sunday school that was disturbed, and the question is, can the conviction be sustained? Article 180, Penal Code, clearly distinguishes between a congregation assembled for religious worship from one assembled for the purpose of conducting a Sunday school, or front one assembled to transact business pertaining to religious worship or the Sunday school. You can not under this statute charge one and prove the other. In Wood v. The State, 11 Texas Criminal Appeals, 318, it was held, that a prosecution for disturbing a congregation assembled for religious worship will not be sustained by proof that the congregation was assembled for business purposes, though there were religious exercises. The charge of the court was error. The question of taxation of costs need not be now considered.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.