| Ala. | Dec 15, 1884
— -This case will have to be reversed, because of a ruling on the admission of evidence. The question to the witness McCall, whether or not he was present, or near enough to hear what words were used by the defendants, was a material factor in determining whether the defendants used the profane language imputed to them. If near enough to hear and understand what was said, testimony by him that he did not hear such language, though negative in its character, the law allowed him to lay before the jury for their consideration. It may have weighed but little, but that was for the jury. Harris v. Bell, 27 Ala. 520" court="Ala." date_filed="1855-06-15" href="https://app.midpage.ai/document/harris-v-bell-6505644?utm_source=webapp" opinion_id="6505644">27 Ala. 520 ; 1 Brick. Dig. 872, § 968 ; Ward v. Reynolds, 32 Ala. 384" court="Ala." date_filed="1858-01-15" href="https://app.midpage.ai/document/ward-v-reynolds-6506233?utm_source=webapp" opinion_id="6506233">32 Ala. 384. A witness may always testify to his means of knowing facts about which he gives evidence, either to strengthen or weaken what he says. Means of knowledge is one of the tests of the weight and credibility of testimony.
The question of the joinder of the two defendants in one indictment, may be cured on another trial, by a nolle-prosequi as to Martin, who was found not guilty. — Berry v. The State, 65 Ala. 117" court="Ala." date_filed="1880-11-15" href="https://app.midpage.ai/document/berry-v-state-6510598?utm_source=webapp" opinion_id="6510598">65 Ala. 117.
The defendants were indicted jointly, in one count, in such terms as to import a joint guilt of one and the same offense. The offense charged is the use, in the presence of a female, of “ abusive, insulting, or obscene language.” — Code of 1876, § 4203. It would seem that, ex vi terminormn, this offense can scarcely be committed by two or more persons conjointly. It is made up of speech — perverted speech — which is necessarily a personal, individual act; and if two should employ the same abusive or obscene language, it would seem this could not amount to a joint act. Each might be guilt}', but we can not perceive how the guilt could be joint. Possibly, one might procure another to use language interdicted by the statute;
There are some authorities which hold that, when two or more persons commit separate offenses of the same grade, and subject to the same punishment, they may be separately charged in one and the same indictment; and that in such case, the judge presiding, having regard to the matter of convenience, will exercise a sound discretion in quashing the indictment, or permitting the prosecution to proceed. — The King v. Kingston, 8 East, 41; 1 Bish. Cr. Proc. §§ 873-4-5 ; Johnson v. The State, 13 Ark. 684; State v. Nail, 19 Ib. 563 ; Lewellen v. The State, 18 Tex., 538" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/lewellen-v-state-4888783?utm_source=webapp" opinion_id="4888783">18 Texas, 538. We need not express our opinion of such practice, further than to say it is hazardous, and should not be encouraged.
Beversed and remanded. The accused to remain in custody, until discharged by due course of law.