Peters v. State

51 So. 952 | Ala. | 1910

SIMPSON, J.

The appellant was indicted and convicted, under section 6218 of the Code of 1907, for sending a threatening or abusive letter which tended to provoke a breach of the peace. The first count in the indictment charged that the letter was sent to W. M. Conine, and the other three counts charged the sending of the letter to W. M. Conine & Co. The bill of exceptions shows that four letters were sent, but only one within 12 months before the finding of the indictment, which letter was addressed to W. M. Conine & Co. As to whether the language used in the letter is “abusive” within the meaning of the statute, the word “abuse” is from the Latin, “ab,” from, and “utor,” to use, and abuse is defined as: “To use improperly, or excessively, * * * to treat ill, use injuriously, hurt; to wrong in speech, reproach coarsely, disparage, revile, malign.” And “abusive” is defied as: “Employing harsh words, or ill treatment, hurtful, harsh, vituperative scurillous, wrongly used, improper.”

We hold that any language, in a letter, which is offensive, and which charges the sendee with a degradation of character, or moral obliquity, is “abusive,” within the meaning of the statute. The letter of 4-1-1908 (which will be set out by the reporter) comes within the m'eaning of the statute, and the fact that it was sent by a lawyer in an effort to collect an account does not make it “privileged,” so as to relieve the writer of the penalty prescribed by the statute. The law does not confer on a lawyer any privilege to use abusive language in attempting to collect an account. The high ideals of the profession demand of him that “sauviter in modo” which dignifies his calling and which is not inconsistant with “fortiter in re.” Consequently the demurrer to plea 2 was properly sustained.

The evidence shows that W. M. Oonine did business under the name of W. M. Conine & Co., and consequently W. M. Conine & Co. was W. M. Conine. Things that are equal to the same thing are equal to each other. A letter addressed to “W. M. Conine & Co.” would not be delivered to any one except W. M. Conine. It is insisted that the first count in the indictment is not sufficient for a conviction under the statute, because the language of the statute is, “which may tend to provoke a breach of the peace,” and said count charges that the language “tended to provoke a breach of the peace.” In the case of Johnson v. State, 152 Ala. 46, 44 South. 670, objection was made to the indictment, and it was contended that the language of the statute implied that the abusive' or threatening language used may have a tendency to provoke a breach of the peace at a time subsequent to the finding of the indictment; but the court held that the words used in the statute “are not only descriptive of what may result in the future, from the sending of the letter, but which, in fact, may never happen, but of the character or quality of the letter”; also, that, “if the language of the letter has any tendency towards provoking it, * * * the offense is complete.” The indictment in the language of the statute was sufficient.—Johnson v. State, 152 Ala. 46, 48, 44 South. 670. It is-evident that the tendency referred to in the statute relates to the time of the sending of the letter, and, while it might have tended to provoke a breach of the peace, yet the language of the present count 1, that it “tended” to provoke a breach of the peace, certainly covers the charge that it might have had that tendency, and the language of the indictment is sufficient, whether the letter did, or did not, actually produce a breach of the peace.

It results that a conviction could be had under the first count, on the proof of sending the letter to W. M. Conine & Co. The demurrer being to the entire indictment, it is unnecessary to determine whether there was any error in overruling' the demurrer to the other counts.—Weems v. Weems, 69 Ala. 104; Ala. Nat. Bank v. Halsey, 109 Ala. 196, 19 South. 522; K. C., M. & B. R. & Co. v. Lackey, 114 Ala. 152, 21 South. 444.

There was no error in the refusal to give either of the charges requested by the defendant.

The judgment of the court is affirmed.

Affirmed.

Dowdell, O. J., and McClellan and Mayfield, JJ., concur.