Cleveland v. State

92 So. 555, 129 Miss. 400

• Court: Mississippi Supreme Court
• Decided: March 15, 1922
• Docket: No. 22464
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Appellant was indictéd and convicted for cursing in a public highway in the presence of two or more persons under section 1295, Code of 1906 (Hemingway’s Code, section 1028), as amended by the Laws of 1912, c. 212, which reads ás follows: '

“If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any public place, in the presence of two or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars.”

The proof shows that the cursing by the appellant was ' done oh the gallery of his home, which was from 50 to 75 yards away from the Dixie Highway. At the time of the cursing the prosecuting witness had stopped a wagon in which school children were being transported to let some of the appellant’s children get out, and while he was in the highway in front of appellant’s home appellant used the language attributed to him. There were a number of children present.

It will be seen from the statement that the language was not used in the highway, and it will be noted from the language of the statute that the thing prohibited is the use of language in a public place. It is familiar learning that criminal statutes will not be expanded by construction to embrace offenses not clearly coming within the terms of the statute. It may be that the appellant was guilty under another section of profanely cursing or swearing in the hearing of a female, but the proof does not show that the offense denounced by the statute under which he was indicted was made out by the proof in this case. We notice no other assignment of error.

The judgment will be reversed, and the appellant discharged.

Reversed, and appellant discharged.