45 So. 466 | Miss. | 1907
delivered the opinion of the court.
The statute (Code 1906, § 10) provides that “all words which from their usual construction and common acceptation are considered as insults and calculated to lead to- a breach of the peace shall be actionable,” etc. The declaration is for damages under that statute, and charges that on a day named “the regular election was being held in the municipality of Longbeach, Harrison county, Mississippi, for the regular election of municipal officers ; that defendant, King, was one of the managers of said election, and was performing the duties as required of a manager; and the plaintiff then and there was a legal and qualified voter of said municipality, and on said election day, while the election was being held, went to the place where the election was being held, and where defendant was acting as such election manager, and plaintiff then and there asked for a ticket that he might vote, whereupon the defendant, King, one of the election managers, said to the plaintiff: ‘You cannot vote because you are a convict. I say you are a "convict, and convicts cannot vote here.’ Said words were spoken then and there-to plaintiff in the presence of several persons, with the intention to> insult plaintiff, and to the very great shame and humiliation of plaintiff, and that said words are, from their usual construction and common acceptation calculated to lead to a breach of the peace and violence, contrary to the statute,” etc. A demurrer was sustained to this declaration.
It is clear that this declaration is demurrable, if it were in libel or slander under the common law, because express malice, or any malice, is not averred; nor is it averred that the statement of the election manager was not actually true. It may or
Affirmed.
