62 Ala. 320 | Ala. | 1878
The indictment is founded on the statute (Code of 1876, § 4203), which reads: “If any person enters into the dwelling-house of another, or upon the curtilage thereof, or upon the public highway near such premises, and in the presence of the family of the owner thereof, or of any member of his family, or of any female, and makes use of abusive, insulting, or vulgar language, he shall be deemed guilty of a misdemeanor,” &c. The evidence showed that the accused made use of profane, abusive and insulting language while walking along the Mobile & Girard Railroad, within two or three hundred yards of the dwelling-house of Henry Freeman, in the presence of his son and daughter, and within the hearing of his family. The court, on this evidence, instructed the jury that the Mobile & Girard Railroad was a public highway, within the meaning of the statute; and to this instruction an exception was reserved.
The Mobile & Girard Railroad was probably constructed by a private corporation, under a charter from the general
The instruction is erroneous. There was no fact shown which fixes the character of the Mobile & Girard Railroad as a public highway ; and the only facts which would fix upon it that character, are that it is a public road, as defined in the decisions to which we have referred.
The judgment is reversed, and the cause remanded. The prisoner will remain in custody until discharged by due course of law.