Jackson v. The State

Jackson v. The State. Indictment for using Abusive, Insultmg or Obscene Language in the Presence of a Female. 1. Using abusive, insulting or obscene language in the presence of a female; sufficiency of indictment. — An indictment which charges that the defendant “made use of abusive, insulting or obscene language in the presence or hearing of a woman, against the peace and dignity of the State,” etc., is sufficient; the word woman being identical in meaning with the word female as used in the statute. 2. Indictment for using abusive, insulting or obscene language in the presence of a female; to what witness may testify. — On a trial under an indictment for using abusive, insulting or obscene language in the presence of a female, it is not competent for a witness to testify that the defendant used an abusive or insulting epithet on the occasion referred to; but the witness should state what was said by the defendant, leaving it tO' the jury to determine whether or not it was an abusive or insulting epithet. Appkau from the Circuit Court of Henry. Tried before the Hon. John P. Hubbard. The appellant in this case was tried and convicted under the following indictment.: “The grand jury of said county charge that before the finding of this indictment, Clem Jackson made use of abusive, insulting or obscene language in the presence or hearing of a woman, against the peace and dignity of the State of Alabama.” To this indictment the defendant demurred upon the ground that it avers that the abusive, insulting or oliscene language was used in the presence or bearing of “a woman” instead of averring that such language was used in the presence or hearing of “a female.” This demurrer was overruled. The facts relating to the. only other ruling of the court which is reviewed on the present appeal, are sufficiently stated in the opinion. Espy & Farmer, for appellant, The demurrer should have been sustained. The statute prohibits the use of “abusive, insulting or obscene language in the presence of a female;” while the indictment, charges that the language was used in the presence: of “a woman.” — Code, § 4306.' It was not. competent for the witness Thompson to. testify whether the defendant, used “an abusive or insulting epithet,” such testimony being the expression of opinion or conclusion on the part of the defendant. — -Morris v. St,ato, 84 Ala. 57. Massey Wilson, Attorney-General, for the State. The demurrer ivas properly overruled. It has been expressly held that the words, “female” and “woman” are identical in meaning, and can be used interchangeably in an indictment. — Meyer v. State, 84 Ala. 11. The court did not err in permitting the witness to testify that defendant had used abusive, insulting or obscene epithets. This was a collective fact to which the Avitness could testify. The defendant had the right to bring out on cross examination the exact language: used, if he desired. — Fuller v. State, 117 Ala, 36; Thornton v. Steele, 113 Ala. 43; Miller v. State, 107 Ala. 40; TAnnehan v. State, 116 Ala. 471. [MAJORITY — DOWDELL, -T.] DOWDELL, -T. The indictment, in this case follows the form prescribed in the Code. — Crim. Code, form No. 3, p. 264. The court, properly overruled the defendant’s demurrer. In Meyers v. State, 84 Ala. 11, it Avas held that the Avords “female” and “AAroman” were identical in meaning, and an indictment, using either was sufficient. The Avitness Coy Thompson Avas asked by the solicitor, “Did you hear the defendant use any abusive or insulting'epithet to Will Davis?” This question was objected to by the defendant, and the objection ivas overruled by the court, b.r which ruling the. defendant excepted. The. witness then answered, “Yes,” which answer the defendant, moved to exclude, and the motion being overruled, the defendant excerpted. In these rulings the court, was in error1. As to whether the defendant, used abusive1 or insulting language, or “epithet” was a fact in issue, the issue the jury was called to try and decide. The question called for the opinion or conclusion of the witness as to whether the language used bv tin1, 'defendant to Will Davis, was insulting or abusive1, and the answer to the question was but. the expression of that opinion. The witness had already testified that he did not remember the language used, non constat, if he had remembered and repeated the language, it might have been shown, that what in. the opinion of the witness, was án. “abusive or insulting epithet,” was not in fact such. The case of Morris v. State, 84 Ala. 457, is similar in principle. In that case the defendant was indicted for disturbing religious worship, and it was decided by this court, that it was error to permit, the witness to stab? against the objection of tin; defendant, that the congregation was disturbed by the defendant, holding that the witness should have stated what was said or done1 by the defendant, and leaving it to the jury to determini? whether or not the1 congregation was disturbed by what the, defendant did or said. For the error pointed out: the judgment of the court, must be reversed, and the cause remanded. Reversed and remanded.