McVay v. State
Citation | 14 So. 862,100 Ala. 110 |
Parties | MCVAY v. STATE. |
Decision Date | 08 February 1894 |
Court | Supreme 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.
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: 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...
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