81 S.E. 693 | N.C. | 1914
The defendant was charged with the violation of "an ordinance of the town of Spencer, ch. 12, sec. 2, in that she did curse on the streets, loud enough to be heard by those passing by, in a disorderly manner, and on the streets of the town." The proof was that she had been arrested for violating an ordinance and given a bond for her appearance to answer the charge. Just as she stepped into her buggy, she was cautioned by the policeman, who had arrested her, as it appears, not to drive through the town, and replied to him that she would drive "where she damned please." The policeman testified that no one heard it except himself, and the other evidence was to the effect that it was not heard by any bystander or any passerby, and was uttered, necessarily, in an ordinary if not in an undertone. It did not appear to have disturbed any one, although there were bystanders as near as 8 or 10 feet from her at the time. Defendant was convicted by the magistrate and appealed, and was again convicted, after moving, under Laws 1913, ch. 73, to dismiss the proceeding and reserving her exceptions. She appealed from the judgment upon the last conviction to this Court. *331
after stating the case: We will not venture to enter upon any casuistical discussion of the question whether the word "damn" is profanity or not, as our decision of the case does not require it. The speech of the defendant was not nice or refined, but this does not, of itself, render it criminal. Disorderly conduct is a species of nuisance, and it may be a violation of the ordinance without necessarily being indictable at common law (S. v. Sherrard,
The defendant expressed her displeasure, or futile indignation, a little too strongly, and should not have used so indecorous an expletive in doing so, but it did not reach beyond the ears of the policeman, and hardly made a ripple on the placid surface of municipal peace. The evidence did not correspond with the allegation, nor tend to support it, nor was *332 there a breach of the ordinance, as it is set forth in the affidavit. The court should have granted the motion, under Laws 1913, ch. 73, to dismiss the proceeding, and such a judgment will be entered below and shall have the effect of a verdict of acquittal, as provided by the act of Assembly.
Reversed.
Cited: S. v. Carlson,