in said meeting-house, by then and there (here set out the facts according to the evidence); against the peace, etc., and contrary to the form of the statute in such case made and provided.

(863) Disturbing a congregation worshipping in a church, at common law (2)

That J. D., etc., on, etc., being Sunday, with force and arms, at, etc., in the Ebenezer Baptist Church there, during the celebration of divine service, unlawfully, unjustly, and irreverently did disturb and hinder one J. V., then being the minister officiating in the said church, and then being in the discharge of his sacred functions and in the performance of divine service, in contempt of the laws of this state, to the evil example, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(864) Disturbing same in a dwelling-house.(a)

That on, etc., at, etc., a number of the citizens of said county were peacefully assembled at the house of J. W., in said county, for religious worship, and for the purpose of offering prayers to Almighty God, and the said persons being then and there so assembled together for the purpose aforesaid, and actually engaged in divine worship, P. R. S. and J. E. S., etc., well knowing the purpose of the said meeting, with force and arms, did then and there enter into said house, and by loud and abusive. language then and there, with profane oaths and violent actions did disturb, wantonly and intentionally, the worship of the Al

(z) People v. Degey, 2 Wheel. C. C. 135.

(a) State v. Swink, 4 Dev. & Bat. 368. "This case," said Ruffin, C. J., “is fully within the principle of Jasper's case (4 Dev. R. 323), which is that a congregation of people collected together for the purpose of divine service and engaged in the worship of Almighty God are protected by the laws and constitution of this state from wanton interruption or disturbance. To entitle them to that protection, it is not requisite that they should be assembled in a church, chapel, or meeting-house, as in this state, houses set apart by religious societies permanently for worship are generally and indifferently called. That would be the rule, if the indictment were framed upon a statute protecting churches, or people worshipping in churches. But under the enlarged sense of the constitution, a place of worship is constituted by the congregation of numerous worshippers thereat; for it is the right of conscience, the worship of the Supreme Being by his creatures, that is protected, and not merely the edifice. Our opinion therefore is, that although the assembly was at a private house-as, we think, must be intended upon this indictment-the defendants were guilty of a gross misdemeanor in molesting those persons there engaged in offering their common prayers, or united in other acts of worship to God."

mighty, and did disturb and molest the citizens then and there assembled for divine worship, to the great contempt of religion, to the common nuisance of the citizens of the state then and there being, and against, etc. (Conclude as in book 1, chapter 3.) (865) Dressing in a woman's clothes, and disturbing a congregation at worship.(b)

That S. S., etc., being an injurious, profane, and irreligious man, on, etc., at, etc., did dress and disguise himself in woman's apparel, and being so as aforesaid dressed and disguised, then and there did go to the Lutheran Church, called Augustus Church, in the same township and county, with an intention then and there to interrupt and disturb divers of his majesty's liege subjects then and there assembled and gathered together to worship God, and then and there wickedly, profanely, and irreligiously did molest, vex, interrupt, and disturb a certain Henry A. Muhlenberg, rector of the said church, then and there preaching to divers of his majesty's liege subjects in the same church, he the said Henry A. Muhlenberg then and there being lawfully charged and qualified to preach in the same church, by reason of his care and function, and other harms to him the said Henry A. Muhlenberg then and there did, to the great displeasure of Almighty God, in contempt of his worship and religion, and of the laws of the land, to the evil example, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(866) Going armed, etc., to the terror of the people, at common

law.(c)

That R. S. H., etc., on, etc., with force and arms, at, etc., did arm himself with pistols, guns, knives, and other dangerous and

(b) This indictment was framed in 1759 by Mr. Benjamin Chew, the then attorney-general of the province.

(c) State v. Huntley, 3 Iredell, 418. Gaston, J., said: "The argument is that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton (2 Ed. III. c. 3); and that, whether this statute was or was not formerly in force in this state, it certainly has not been since the first of January, 1838, at which day it is declared in the Rev. Stats. (ch. 1 § 2) that the statutes of England and Great Britain shall cease to be of force and effect here. We have been accustomed to believe that the statute referred to did not create this offence, but provided only special penalties and modes of proceeding for its more effectual suppression; and of the correctness of this belief we can see no reason to doubt.

unusual weapons, and being so armed did go forth and exhibit himself openly, both in the daytime and in the night, to the

All the elementary writers who give us any information on the subject concur in the representation; nor is there to be found in them, as far as we are aware of, a dictum or intimation to the contrary. Blackstone states, that 'the offence of riding or going armed with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton (2 Ed. III. c. 3), upon pain of forfeiture of the arms and imprisonment during the king's pleasure.' 4 Bla. Com. 149. Hawkins, treating of offences against the public peace, under the head of Affrays,' pointedly remarks, but granting that no bare words in judgment of law carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray where there is no actual violence, as where a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people, which is said to have been always an offence at common law, and strictly prohibited by many statutes.' Hawk. P. C. b. 1, c. 28, s. 1. Burn and Tomlins inform us, that this term 'affray' is derived from the French word 'effrayer, to affright, and that anciently it meant no more, 6 as where persons appeared with armor or weapons not usually worn, to the terror of others." Burn, Verb. ‘Affray.' It was declared by the chief justice in Sir John Knight's case, that the statute of Northampton was made in affirmance of the common law. 3 Mod. Rep. 117. And this is manifestly the doctrine of Coke, as will be found on comparing his observations on the word 'affray,' which he defines (3 Inst. 158), ‘a public offence to the terror of the king's subjects, and so called because it affrighteth and maketh men afraid, and is inquirable in a leet as a common nuisance,' with his reference immediately thereafter to this statute and his subsequent comments on it (3 Inst. 160), where he cites a record of the 29th year of Ed. I., showing what had been considered the law then. Indeed, if those acts be deemed by the common law crimes and misdemeanors which are in violation of the public rights, and of the duties owing to the community in its social capacity, it is difficult to imagine any which more unequivocally deserve to be so considered than the acts charged upon this defendant. They attack directly that public order and sense of security which it is one of the first objects of the common law, and ought to be of the law of all regulated societies, to preserve inviolate; and they lead almost necessarily to actual violence. Nor can it for a moment be supposed that such acts are less mischievous here, or less the proper subjects of legal reprehension, than they were in the country of our ancestors. The bill of rights in this state secures to every man indeed the right to bear arms for the defence of the state." While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employ those arms which he ought to wield for the safety and protection of his country to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege with which he has been invested. It has been remarked that a double-barrelled gun, or any other gun, cannot in this country come under the description of unusual weapons,' for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an unusual weapon' wherewith to be armed and clad. No man amongst us carries it about with him as one of his every-day accoutrements-as a part of his dressand never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving state as an appendage of manly equipment. But although a gun is an unusual weapon,' it is to be remembered that the carrying of a gun, per se, constitutes no offence. For any lawful purpose, either of business or amusement, the citizen is at perfect liberty to carry his gun. It is the

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good citizens of Anson aforesaid, and in the said highway and before the citizens aforesaid, did openly and publicly declare a purpose and intent, one J. H. R. and other good citizens of the state, then and there being in the peace of God and the state, to beat, wound, kill, and murder, which said purpose and intent the said R. S. H., so openly armed and exposed and declaring, then and there had and entertained, by which said arming, exposure, exhibition, and declarations of the said R. S. H., divers good citizens of the state were terrified, and the peace of the state endangered, to the evil example, etc., to the terror of the people, and against, etc. (Conclude as in book 1, chapter 3.)·

(867) Carrying a dangerous weapon, under Indiana Rev. Sts.(d) That on, etc., at, etc., and on divers other days and times, etc., A. B. did then and there unlawfully carry concealed in his pocket, a certain dangerous weapon, namely, a certain pistol, he not being a traveller, contrary, etc. (Conclude as in book 1, chapter 3.)(e)

(868) Maliciously firing guns into the house of an aged woman, and killing a dog belonging to the house.(f)

That R. T. and J. L., late of, etc., on, etc., with force and arms, at the house of one S. R., an aged woman, situate in the county aforesaid, did then and there wickedly, mischievously, and maliciously, and to the terror and dismay of the said S. R., fire several guns, and then and there did shoot and kill a dog belonging to said house, without any legal authority, against, etc. (Conclude as in book 1, chapter 3.)

wicked purpose and the mischievous result, which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm a peaceful people." See, on this topic, Wh. Cr. L. 8th ed. 1553.

(d) State v. Duzan, 6 Blackf. 31. "We think this indictment is good. The objection that the pistol is not stated to have been loaded is insufficient. The statute says, that every person, etc., who shall wear or carry any dirk, pistol, sword in cane, or other dangerous weapon concealed, shall, etc. Rev. Stat. 1838, p. 217. The statute does not require that the pistol should be loaded.” (e) See Wh. Cr. L. 8th ed.

1557.

(ƒ) Sustained in State v. Langford, 3 Hawks, 381. See for similar precedents, supra, 485, note. 415

(869) Breach of peace, tumultuous conduct, etc., in Vermont.(g)

That H. B., etc., on, etc., and on divers other days and times between that date and the time of this presentment, with force and arms, at, etc., did greatly disturb and break the peace by tumultuous and offensive carriage, and by threatening, quarrelling, and challenging, and by lying in wait for one S. B., and by threatening to kill the said S. B., to the great disquiet, terror, and alarm of the said S. B., and other good citizens of this state, and other wrongs then and there did, to the evil example, etc., contrary, etc. (Conclude as in book 1, chapter 3.)

(869a) Furious driving, under English statute.

That J. S., etc., on, etc., at, etc., being then a coachman, and then having charge of a certain carriage and vehicle called an omnibus, unlawfully did, by the wanton and furious driving of the said carriage and vehicle by him the said J. S., cause certain bodily harm to be done to one J. N., against, etc.(h) (Conclude as in book 1, chapter 3.)

(8696) Against horse-car conductor for over-driving, etc.

The jurors of the people of the state of New York, in and for the body of the city and county of New York, upon their oath present: That George W. Tinsdale, late of the first ward of the

(g) This count was sustained in State v. Benedict, 11 Vt. 237. Redfield, J. Whatever was once thought upon this subject, it is now well settled, that mere threats in words not written, are not an indictable offence at common law. It is said in many of the books that it was formerly indictable. This might have been and probably was the case at the time the statute in this state in relation to the subject was passed. It is there said, if any person shall in any manner disturb or break the peace, by tumultuous and offensive carriage, by threatening, quarrelling, challenging, assaulting, beating, or striking any other person,' he shall be liable, on conviction, to pay such fine as the court, taking into consideration the situation of the party smiting or being smitten, the instrument and danger of the assault, the time, place, and provocation, according to the nature of the offence, shall adjudge.'

"There is another reason why here, more than at common law, mere threats should be considered an offence punishable by indictment. At common law the person threatened can swear the peace against the offender, and obtain redress in that way, by obtaining security against the commission of the offence threatened. This mode of primitive justice has not been much resorted to, if indeed it exists in this state. It is believed the legislature intended the remedy here given to supersede its necessity. The sending of threatening letters is an offence of a different character.”

(h) Arch. C. P. 19th ed. p. 735.

H