McVay v. State

Citation14 So. 862,100 Ala. 110
PartiesMCVAY v. STATE.
Decision Date08 February 1894
CourtSupreme Court of Alabama

Appeal from Lawrence county court; J. C. Kumpe, Judge.

Sterling McVay was convicted of using abusive, insulting, or obscene language in the presence or hearing of females, and he appeals. Reversed and remanded.

The indictment charged "that, before the finding of this indictment, Sterling McVay did, in the presence or hearing of a woman make use of abusive, insulting, or obscene language against the peace," etc. The testimony showed that the defendant, within the period covered by the indictment, and in Lawrence county, in the presence of one Whitman and others, used abusive language near the dwelling of said Whitman, where the latter's wife and daughter were at the time; that this was about 8 o'clock p. m., and the defendant spoke in a "moderate or audible voice." None of said females were present when the words were spoken but were in the house, about 25 or 30 yards from the defendant. While the said Whitman was being examined for the prosecution, the solicitor asked him "if, from the distance his females were from the defendant at the time of the cursing, could they have heard the language used?" The defendant objected to the question, and, his objection being overruled, he duly excepted. The witness then answered "It was a still night, and, in my opinion, they could have heard it." The defendant objected to the answer of the witness on the ground that it was the statement of an opinion, and not of a fact. The court overruled the objection, and the defendant duly excepted. The rulings of the court upon the charge given and the charge refused are sufficiently stated in the opinion.

Wm. L Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted and convicted under section 4031 of the Criminal Code, which reads as follows: "Any person who enters into or goes sufficiently near to the dwelling house of another, and in the presence or hearing of the family of the occupant thereof, or any member of his family, or any person, who in the presence or hearing of any female, uses abusive, insulting, or obscene language, must on conviction," etc. The first clause of the statute was intended to protect the home, and the user of the language prohibited by the statute, in the presence or hearing of the family, or the occupant thereof, or any member of the family, without reference to the sex of such member, would be guilty of a violation of the statute. The statute then makes the use of such language in the presence of "any female," without reference to the place in which it is used, a violation of law. The indictment simply charges that the defendant made use of the language in the presence of a female. The witness Whitman testified to the use of the language by the defendant. He says: "None of the female members of my family were present. They were in my house, twenty-five or thirty yards from where the cursing was going on. My wife and one daughter was in the house." There was no evidence tending to show that the language used was in the presence or hearing of any other females or female. The defendant asked for the general affirmative charge, which was refused. It is very clear that if the defendant had been indicted under the first...

To continue reading

Request your trial
25 cases
  • Sovereign Camp, W.O.W. v. Hoomes
    • United States
    • Alabama Supreme Court
    • 25 Abril 1929
    ... ... collected some of our cases that illustrate an exception that ... has been permitted to the general rule of best evidence ( ... Caddell v. State, 129 Ala. 59, 30 So. 76) in that of ... a shorthand rendition of fact. Some of our cases are as ... follows: Brindley v. State, 193 Ala. 43, 69 ... work"; East Tenn. Va. & Ga. R. R. Co. v ... Watson, 90 Ala. 41, 7 So. 813, the animal killed was ... "a very fine colt"; McVay v. State, 100 ... Ala. 110, 14 So. 862; Rollings v. State, 136 Ala ... 126, 34 So. 349, that the distance of females from defendant ... at the ... ...
  • Cunningham Hardware Co. v. Louisville & N. R. Co.
    • United States
    • Alabama Supreme Court
    • 26 Abril 1923
    ... ... & ... N. R. Co. v. Hayward, 201 Ala. 9, 75 So. 22; Perrine ... v. Southern Bitulithic Co., 190 Ala. 96, 66 So. 705; ... Pope v. State, 174 Ala. 63, 57 So. 245; Penn ... Casualty Co. v. Perdue, 164 Ala. 508, 51 So. 352; ... St. L. & S. F. R. R. Co. v. Brantley, 168 Ala. 579, ... Thomas, 175 Ala. 423, 57 So ... 587; Ala. Mineral R. Co. v. Jones, Adm'r, 114 ... Ala. 519, 21 So. 507, 62 Am. St. Rep. 121; McVay v ... State, 100 Ala. 110, 14 So. 862; B'ham Min. R ... Co. v. Harris, 98 Ala. 326, 336, 13 So. 377; E. T ... V. & G. R. Co. v. Watson, 90 ... ...
  • Standard Cooperage Co. v. Dearman
    • United States
    • Alabama Supreme Court
    • 21 Octubre 1920
    ...fall, receiving the injuries for which suit is sought to be maintained. L. & N.R.R. Co. v. Landers, 135 Ala. 504, 512, 33 So. 482; McVay v. State, supra; Miller Whittington, supra; Greenwood Café v. Lovinggood, 197 Ala. 34, 36, 72 So. 354; E. T.V. & G.R.R. Co. v. Watson, 90 Ala. 41, 44, 7 S......
  • Louisville & N.R. Co. v. Manning
    • United States
    • Alabama Supreme Court
    • 18 Enero 1951
    ...jury all the details upon which the collective fact is based. East Tenn. V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 So. 813; McVay v. State, 100 Ala. 110, 14 So. 862. It has been said that the soundness of the conclusion in such a case is to be tested on cross-examination. But it has never ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT