McVay v. State

100 Ala. 110 | Ala. | 1893

COLEMAN, J.

The defendant was indicted and convicted under section 4031 of the Criminal Code, which reads as follows:. “Any person, who .enters into or goes sufficiently near to the dwelling house of another, and in the presence or hearing of the family of the occupant thereof, or any member of his family, or any person, who in the presence or hearing of any female, uses abusive, insulting, or obscene language, must on conviction,” &c. The first clause of the statute was intended to protect the home, and the use of the language prohibited by the statute in the presence or hearing of the family or the occupant thereof, or any member of the family, without reference to the sex of such member, would be a violation of the statute. The statute then makes the use of such language in the presence of “any female” without reference to the place, in which it is used, a violation of law. The indictment simply charges that the defendant made use of the language, in the presence of a female. The witness "Whitman testified to the use of the language by the defendant. He says “none of the female members of my family were present. They were in my house twenty-five or thirty yards from where the cursing was going on. My wife and one daughter was in the house.” There was no evidence tending to show that the language used was in the presence or hearing of any other females or female. The defendant asked for the general affirmative charge which was refused. It is very clear that if the defendant had been indicted under the first provision of the statute, for going sufficiently near the dwelling horise of the witness and making use of such language in the presence or hearing of the family or any member of his family, the charges should have been refused. The question presented by the charge is, whether a party indicted under one provision of the statute, can be convicted by proof which shows that the offense was covered also by a different provision ? The case is not different from those which arise, where the same act constitutes a violation of two or more statutes. A party may play at cards on Sunday, in a public place, and hazard money or a thing of value, on the game. Such an act would violate three distinct statutes of this State, that which prohibits playing cards on Sunday, and the statute which prohibits the playing of cards at a public place, and also the statute which makes it an offense to bet or hazard money at a public place. &c.—Cr. Code, §§ 4045, 4052, 4057. The same principle is illustrated in the law against retailing and violating the revenue law, and selling whiskey to a minor. A conviction for the act charged under either statute is a bar to a prosecution for the same act under a different statute. It was so held in the case of O’Brien v. The. State, 91 Ala. 25.

There was no error in refusing the general charge for the defendant. Against the objection of the defendant the solicitor was permitted to ask the witness “that if from the distance his females were from the defendant at the time of the cursing, could they have heard the language used?” To this question the witness answered, “It was a still night, and in rmj opinion they could have heard it.”

In the case of Cox v. The State, 76 Ala. 66, under a similar indictment the witness was asked, “were you present and near enough to see and hear what transpired between the parties?” This court held that it was a proper question and should have been answered. If a party can answer that lie was near enough to hear a declaration, we can not see why he may not answer whether or not a third person was near enough to hear. Adding the words “in my opinion” does not vary the principle. He knew the circumstances, the distance the parties were apart, heard the tone of voice, observed the stillness of the night, and could answer as a fact, that in his judgment, the females could have heard it. The words “in my opinion” were evidently used in this sense.

The court charged the jury, “that if Mrs. Whitman was near enough to hear the abusive and insulting or obscene language used, it is not necessary to show that she did actually hear it.” We think this charge should not have been given. To authorize a conviction the language must be used “in the presence or hearing of a female.” The uncontradicted evidence is, that no females were present. It was therefore necessary to satisfy the jury that the words were heard. This is the distinction between this case and the case of Yancey, 63 Ala. 141. In the latter case, the evidence showed the presence of the female. It was therefore unnecessary to introduce proof that she heard it. The case must be reversed for error in giving the charge excepted to.

Eeversed and remanded.