State v. Shelby

• Decision Date: 02 June 1905
• Docket Number: 14,238 - (18)
• Citation: 103 N.W. 725,95 Minn. 65
• Parties: STATE v. HANS A. SHELBY
• Court: Minnesota Supreme Court

103 N.W. 725

95 Minn. 65

STATE v. HANS A. SHELBY

Nos. 14,238 - (18)

Supreme Court of Minnesota

June 2, 1905

Appeal by defendant from an order of the district court for Todd county, Baxter, J., denying a motion for a new trial, after a trial and conviction of the offense set forth in the opinion. Reversed.

SYLLABUS

Use of Abusive Language.

In a prosecution under section 6940, G.S. 1894, defendant was charged in the complaint with having used certain abusive language toward and in the presence of complainant, intending thereby, and which naturally tended, to cause a breach of the peace. The trial court charged the jury (1) that the question of intent was immaterial, and that defendant was guilty of the offense charged if they found that the language used by him naturally tended to cause a breach of the peace; and (2) that the jury might, in determining whether the language naturally tended to cause a breach of the peace, take as a basis what the members of the jury would have done, had the language been used toward them. Held, for reasons stated in the opinion, error.

J. U Hemmy, for appellant.

L. M Davis, County Attorney, and Geo. W. Peterson, for the State.

OPINION

BROWN, J.

Defendant was prosecuted before a justice of the peace, under section 6940, G.S. 1894, for using in reference to and in the presence of another abusive language. He was convicted before the justice, and appealed to the district court on questions of law and fact, where he was again convicted; and he appealed to this court from an order of the district court denying a new trial.

The complaint charged that on June 29, 1903, defendant wilfully and unlawfully used in reference to and in the presence of Frank Putnam abusive language, intended and naturally tending to provoke an assault and breach of the peace. The language was as follows: "You s of a b ! you ought to be sent to the insane asylum. You are a fool." There was a sharp conflict in the evidence on the trial whether the words "s of a b " were used by defendant at all. The complainant and his witnesses testified that the words were used, but defendant and the witnesses called by him denied it. Defendant admitted, however, saying to plaintiff, in substance:

You fool, what are you doing here? If you don't know any better than this, you ought to be sent to the insane asylum.

The trial court instructed the jury as follows:

And whether this defendant really intended to drive him off or stir up trouble with him, or doing anything of that kind, is not a question for you. The question is whether, under the circumstances, the use of such language had a tendency to create a breach of the peace....