Byrd v. Commonwealth

• Decision Date: 13 March 1919
• Citation: 98 S.E. 632
• Court: Virginia Supreme Court
• Parties: BYRD . v. COMMONWEALTH.

98 S.E. 632

BYRD .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 13, 1919.

Error to Corporation Court of Hopewell.

R. J. Byrd was convicted of unlawfully slandering and abusing another's wife by using vulgar and obscene language to and about her in the presence of such other, andhe brings error. Judgment reversed, and cause remanded for new trial.

W. L. Devany, Jr., of Hopewell, for plain, tiff in error.

Jno. R. Saunders, Atty. Gen., for the Commonwealth.

KELLY, J. This is a prosecution for an alleged violation of section 3780a of the Code, which is as follows:

"If any person shall, in the presence or hearing of another, curse or abuse such person, or use any violently abusive language to such person concerning himself or any of his female relations, under circumstances reasonably calculated to provoke a breach of the peace, he shall be deemed guilty of a misdemeanor, and on conviction fined in any sum not less than two dollars and fifty cents nor more than five hundred dollars, in the discretion of the justice trying the case." Acts 1910, p. 18.

It is necessary in the outset to construe this statute. The defendant contends that, in order to constitute an offense thereunder, the insulting words must be used in the presence of some third person, as well as in the presence of the person to or about whom they are spoken. The statute is possibly not entirely clear in this respect, and the construction contended for finds support in the obvious fact that as a rule the presence of third persons adds aggravation to direct personal insults. To adopt this view, however, it would be necessary to read into the statute some additional expression with which to connect the words "such person." Taking the language as a whole, and considering the subject-matter and reason of the enactment, we are of opinion that the contrary view, advocated by the commonwealth, is correct. In other words, the expression, "such person, " refers to the person "in the presence or hearing of" whom the insult is offered; and the offense is complete whenever insulting language is spoken to or about another, or about his female relations, in his presence and under circumstances reasonably calculated to provoke a breach of the peace, regardless of the presence or absence of third persons. The title of the act, to which we may properly refer in determining its meaning (36 Cyc. 1133; C. & O. Ry. Co. v. Pew, 109 Va. 288, 293, 64 S. E. 35), declares its purpose to be "to punish a person for using abusive language to another" without any reference whatever to the presence of third persons. Similar statutes in other states plainly omit any requirement of the presence of others than the person insulted as an element of the offense. See, for example, Moore v. State, 50 Ark. 26, 6 S. W. 17; Watkins v. State (Tex. Cr. App.) 44 S. W. 507; Dyer v. State, 99 Ga. 20, 25 S. E. 609, 59 Am. St. Rep. 228.

The defendant, R. J. Byrd, was tried by a justice of the peace In the city of Hopewell, and fined $25 upon a warrant charging that in said city he "did on various times in June, 1918, unlawfully slander and abuse Mrs. M. J. Connelly by using vulgar and obscene language to and about her." On appeal to the corporation court, the warrant was amended, on defendant's motion, by adding, after the words last quoted, the words, "in the presence of her husband, under circumstances reasonably calculated to produce a breach of the peace." In a jury trial which followed, he was again found guilty, and sentenced to pay a fine of $25. It is this sentence which is now under review.

The only evidence offered to sustain the warrant showed that Byrd had made derogatory and insulting remarks about Mrs. Connelly to her husband, but not in her presence. Whether any person, except Byrd and Connelly, was present does not appear.

This evidence was objected to on the ground that it did not tend to prove the offense charged in the warrant, which, as contended by the defendant, was the use of insulting words to Mrs. Connelly in the presence of her husband. The action of the court in overruling this objection is the subject of the first assignment of error.

The court was right. The only objection made to the form of the warrant was met by the amendment already indicated. As thus amended, while it was imperfectly phrased, the warrant was sufficient, in substance, to charge that the defendant had used abusive language about Mrs. Connelly in the presence of her husband under circumstances reasonably calculated to provoke a breach of the peace.

It was further urged, upon the hearing in this court, that the evidence was inadmissible, even if it did tend to prove the charge in the warrant as amended, because no third person was shown to have been present. This argument is disposed of by the construction which we have placed upon the statute.

During the course of the trial, the defendant offered to prove that the offensive words spoken by him to Connelly about the latter's wife were true. The court, upon the commonwealth's objection, refused to admit this evidence, and its action in that regard is assigned as error.

Counsel for defendant concedes, and it is clear upon reason and authority, that the evidence was not admissible in bar of the prosecution (Dyer v. State, supra; 8 R. C. L. p. 286, § 307); but the contention here is that the defendant ought to have been allowed to prove the truth of the defamatory words in mitigation of the punishment. For this latter...