Darnell v. State
| Decision Date | 26 November 1913 |
| Parties | DARNELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Haskell County Court; A. J. Smith, Judge.
R. H. Darnell was convicted of using vulgar, obscene, profane, and indecent language over and through a telephone, and he appeals. Affirmed.
C. E. Lane, Asst. Atty. Gen., for the State.
Appellant was convicted under an indictment charging that he unlawfully used vulgar, obscene, profane, and indecent language over and through a telephone.
The Assistant Attorney General makes the point that this court has no jurisdiction because the recognizance is not in compliance with the statute in that it leaves off the three words "in this case" in the form prescribed by the statute (article 919, C. C. P.). In the opinion of the writer this should not have been held a fatal defect in the recognizance. However, this court has in so many cases held this defect fatal and dismissed the cases because thereof that the court is not now willing to overrule all these cases. We cite some of them. Cryer v. State, 36 Tex. Cr. R. 621, 37 S. W. 753, 38 S. W. 203; Brock v. State, 72 S. W. 599; Page v. State, 72 S. W. 1134; Bradley v. State, 72 S. W. 1133; Mason v. State, 74 S. W. 25; Heinen v. State, 74 S. W. 776; Mallard v. State, 83 S. W. 1115; Armstrong v. State, 77 S. W. 446; Fortenberry v. State, 72 S. W. 586; Fortenberry v. State, 44 Tex. Cr. R. 535, 72 S. W. 588; Adams v. State, 44 Tex. Cr. R. 535, 72 S. W. 588.
Under the circumstances this court has no jurisdiction of this appeal, and the case is therefore dismissed.
On Rehearing.
Since this case was dismissed for an insufficient recognizance, appellant has had it corrected and now brings the proper evidence of a sufficient recognizance entered into in the lower court. His motion to set aside the former dismissal of this case and now decide the case on the merits is therefore granted.
The statute under which appellant was convicted was passed in 1909 and is now article 471, P. C., as follows: "If any person shall use any vulgar, profane, obscene or indecent language over or through any telephone in this state, he shall be guilty of a misdemeanor, and, on conviction shall be fined in any sum not less than five dollars nor more than one hundred dollars." The lowest penalty was assessed against appellant.
The uncontradicted proof introduced by both sides shows that on April 30, 1913, appellant, who was a subscriber of the telephone company, called up, on a party line, Mr. Dinsmore and discussed with him over and through the phone the insufficient service the phone company was giving to its subscribers, and said: At least two others on this party line heard this conversation at the time. One of the witnesses at least says appellant used the words "son of a bitch" twice.
It is well known that the...
To continue reading
Request your trial
-
State v. Koetting
...In similar circumstances courts have attached criminal liability for the use of the term son of a bitch. Darnell v. State, 72 Tex.Cr.R. 271, 161 S.W. 971 (Tex.Crim.1913) (telephone harassment statute) and State v. Leonard, 255 Iowa 1365, 124 N.W.2d 429 (Iowa 1963) (conviction for breach of ......
-
State v. Yeargain
...that issue was discussed in Koetting, supra, at 330-31, citing Tollett v. U.S., 485 F.2d 1087, 1093 (8th Cir.1973); Darnell v. State, 72 Tex.Crim. 271, 161 S.W. 971 (1913); and State v. Leonard, 255 Iowa 1365, 124 N.W.2d 429 The same assertion was made in Koetting that defendant now raises-......
-
State v. Leonard
...of obscene conforms more closely to the purpose of the statute. 'Son of a bitch' has been held to be obscene in Texas, Darnell v. State, 72 Tex.Cr.R. 271, 161 S.W. 971. We intimated we so considered the term in town of Neola v. Reichart, 131 Iowa 492, 109 N.W. 5. We need not consider if the......
-
People v. Cirruzzo
...is within the prohibition of the statute, and that whether or not it had such tendency was a question for the jury.'' In Darnell v. State, 72 Tex.Cr.R. 271, 161 S.W. 971, the appellant was convicted of using vulgar, obscene, profane and indecent language over a telephone, more particularly ......