Gaines v. State

• Decision Date: 30 September 1881
• Parties: JAMES GAINES v. THE STATE.
• Court: Tennessee Supreme Court

75 Tenn. 410

JAMES GAINES

v.THE STATE.

Supreme Court of Tennessee.

September Term, 1881.

FROM KNOX.

Appeal in error from the Criminal Court of Knox county. M. L. HALL, J.

J. C. J. WILLIAMS for Gaines.

Attorney-General LEA for the State.

COOPER, J., delivered the opinion of the court.

The plaintiff in error was indicted for uttering a profane oath “in a public place, in the presence of divers good citizens, and to the common nuisance,” and, upon conviction, appealed in error.

Profanity is indictable when it becomes a public nuisance, and the indictment in this case is good: State v. Graham, 3 Sneed, 134;State v. Steele, 3 Heis.. 135. The averment to the common nuisance is essential: Robinson v. State, September Term, 1880. If the indictment be in other respects good, it is not a fatal defect to omit the allegation that the words were uttered in the presence of divers good citizens, the omission being supplied by the other averments: State v. Wyrick, at this term. Whenever, upon a trial under a sufficient indictment, there is evidence that the swearing, or profane language, was a nuisance to the public, the offense is made out. It is not absolutely necessary that the name of the Deity should be used. Any words importing an imprecation of divine vengeance or implying divine condemnation, so used as to constitute a public nuisance, would suffice: Isom v. State, September Term, 1880; Holcomb v. Cornish, 8 Conn., 375. A single utterance of a profane oath, not repeated nor in a loud voice, has been held not to be per se indictable: State v. Powell, 70 N. C., 67. And it was said by the eminent judge who delivered the opinion of this court in The State v. Graham, that an isolated act of profanity was only punishable under the act of 1741, brought into the Code, sec. 1725, which imposes a small pecuniary penalty for each oath, recoverable before a justice of the peace. It is possible, however, to conceive of cases where even a single oath, either by its terms, its tone or manner, might, under the peculiar circumstances, be held to be a nuisance. But such cases would constitute exceptions to the general rule.

The utterance in the case before us was in the public street of East Knoxville, about nine o'clock at night. Four persons heard the words, the prosecutor, at whom the oath was directed, his wife, another female who was with the prisoner, and a citizen living on the street who was induced to come to the front of his house by the loud...