61 Ala. 58 | Ala. | 1878
This prosecution originated in the County Court, and after conviction, was carried by appeal to the Circuit Court. The charge is a violation of the statute prohibiting the use of abusive, vulgar, or insulting language in 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 or possessor thereof, or of any member of his family, or of any female. Code of 1876, § 4203. The trial on the appeal to the Circuit Court is de novo, without any indictment or presentment by the grand jury, but the solicitor is required to file a brief statement of the offense charged, a form of which is given, which indicates the offense must be described as in an indictment. — Code of 1876, § 4729. Astatementwas filed, charging the defendant with an entry into the dwelling-house of another, or upon the curtilage thereof, and the use of abusive, vulgar, or insulting language, but omits to charge the presence of the owner or possessor, or of his family, or of any member thereof, or of any female. The offense is statutory, not existing at common law, and an indictment, or the accusation which must be filed on appeal from the County Court, is insufficient, unless it avers the facts which the statute declares are constituents of it. It is the protection of the persons who are particularly mentioned from insult, the statute is intended to secure; and their presence, or the presence of some one of them, is as material to constitute the offense, as the use of the abusive, insulting, or vulgar language, or the places at which the language is used. The statement is insufficient, and does not support the judgment.
Whatever may have been the signification of the word curtilage, as employed at common law in reference to burglary, we can not doubt that in this statute, it includes the yard, or garden, or field, which is near to and used in connection with the dwelling. It is not necessary either should be surrounded by an enclosure. It is the propinquity to the dwelling, and the use in connection with it for family purposes, which the statute regards, and not the fact of its enclosure. — Bish. Stat. Crimes, § 286; State v. Shaw, 31 Me. 523. There was no error in the charge given, or in the refusal of that requested.
For the error pointed out, the judgment must be reversed and the cause remanded. The appellant will remain in custody until discharged by due course of law.