#### State vs. Horn.

An indictment (under sec. 1, ch. 51 Dig. p. 370,) for disturbing a congregation assembled for religious worship, by “profanely swearing,” “ and by talking and laughing .aloud,” is not bad for duplicity — the latter words being merely surplusage.

Appeal from, Lawrence Circuit Court.

Hon. William C. Bevens, Circuit Judge.

Mr. Attorney General Johnson for the State.

The law upon which the indictment is founded, does not make “ laughing and talking” in a congregation assembled for religious worship, an offence; and the inserting of those words in the indictment does not vitiate it. The indictment in this case is in the identical words of the statute, sec. 1, Art. vi, ch. •51, Dig.

Mr. Chief Justice English

delivered the opinion of the Court.

This was an indictment against Jesse Horn, in the Lawrence Circuit Court, for disturbing a religious congregation.

*579The indictment charged, “ That Jesse Horn on, etc., at etc., did, contemptuously, disturb a certain congregation of people then and there assembled, in a certain house known and called Steep Bank Church, for religious worship, by then and there contemptuously and profanely swearing (and by talking and laughing aloud) in the presence and hearing of the said congregation so assembled for religious worship, as aforesaid, and while said congregation was engaged in religious worship, to the evil example of all others in like cases oilending, contrary to the form of the statute,” etc.

The defendant moved to quash the indictment on the ground that there were two distinct, separate and independent oifences charged against him in the same count, in this; that he was charged with using “ profane language,” and also “ laughing and talking.”

The Court sustained the motion, quashed the indictment, and the State appealed.

The indictment was preferred at the May term, 1856, and was founded on sec. 1, Art. vi, part 8, chap. 51, p. 370, Digest, which makes it an offence against public morals and decency to disturb a congregation, etc., assembled for worship by profanely swearing, or using indecent gestures, or threatening language, or committing any violence of any kind, etc. A disturbance by profanely swearing, as charged here, is an offence, but a disturbance by “ talking and laughing aloud,” however impolite, is not made criminal by this statute. State vs. Ratliff, 5 Eng. 530; State vs. Minyard, 7 Eng. 157; Fletcher vs. State, Ib. 169; Stratton vs. State, 13 Ark. 691. There was, therefore, no duplicity in the indictment. The words “ and by talking and laughing aloud,” were merely surplusage, and not such sur-plusage as vitiated the indictment. 1 Chit. Cr. L. 295-6.

The judgment is reversed.