Elliott v. State

Court of Criminal Appeals of Texas

Elliott v. State

40 S.W. 284, 37 Tex. Crim. 514, 1897 Tex. Crim. App. LEXIS 122

CourtCourt of Criminal Appeals of Texas

DecidedApril 14, 1897

DocketNo. 1145.

StatusPublished

Cited by1 cases

This text of 40 S.W. 284 (Elliott v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elliott v. State, 40 S.W. 284, 37 Tex. Crim. 514, 1897 Tex. Crim. App. LEXIS 122 (Tex. 1897).

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Opinion

DAVIDSON, Judge.

Appellant was convicted of going near a certain private residence, and cursing and swearing in a manner calculated to disturb the inhabitants thereof, and his punishment assessed at afine of $10; hence this appeal. The indictment charges that the cursing occurred near the house of one F. C Nance. The proof shows, without any controversy, that the cursing occurred in the field, where Nance and his wife and daughters were present; that the tone of voice of the defendant *515 was a little louder than an ordinary conversation,'and was heard "by the parties present. But there is no pretense that it could have been heard at the house of F. C. Nance, five hundred yards distant. The question is, was this near the private residence of F. C. Nance,.in contemplation of the statute? We hold that iVwas not. In our view, the statute was intended to prevent the use of the language inhibited by the statute, so near a private house as to be heard by the inhabitants thereof. It may not be necessary that the inhabitants of such house be actually disturbed, but the language must be of a character calculated to disturb the inhabitants of such private house. The proof fails to show that the language used was near enough to said private house as that it was calculated to •disturb the inhabitant' thereof. The fact that the inhabitants of a certain ■private house were disturbed by the profanity of the defendant at some other place does not constitute the offense as charged. Cursing and ■swearing, under the statute under discussion, are not made an offense; but they are only so when they are in a public place, or so near a private residence as to be calculated to disturb the inhabitants thereof. Because the proof is not sufficient to sustain the allegations of the indictment, the judgment is reversed and the cause remanded.

Reversed a/nd Remanded.

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DAVIDSON, Judge.

Appellant was convicted of going near a certain private residence, and cursing and swearing in a manner calculated to disturb the inhabitants thereof, and his punishment assessed at afine of $10; hence this appeal. The indictment charges that the cursing occurred near the house of one F. C Nance. The proof shows, without any controversy, that the cursing occurred in the field, where Nance and his wife and daughters were present; that the tone of voice of the defendant *515 was a little louder than an ordinary conversation,'and was heard "by the parties present. But there is no pretense that it could have been heard at the house of F. C. Nance, five hundred yards distant. The question is, was this near the private residence of F. C. Nance,.in contemplation of the statute? We hold that iVwas not. In our view, the statute was intended to prevent the use of the language inhibited by the statute, so near a private house as to be heard by the inhabitants thereof. It may not be necessary that the inhabitants of such house be actually disturbed, but the language must be of a character calculated to disturb the inhabitants of such private house. The proof fails to show that the language used was near enough to said private house as that it was calculated to •disturb the inhabitant' thereof. The fact that the inhabitants of a certain ■private house were disturbed by the profanity of the defendant at some other place does not constitute the offense as charged. Cursing and ■swearing, under the statute under discussion, are not made an offense; but they are only so when they are in a public place, or so near a private residence as to be calculated to disturb the inhabitants thereof. Because the proof is not sufficient to sustain the allegations of the indictment, the judgment is reversed and the cause remanded.

Reversed a/nd Remanded.

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Bluebook (online)

40 S.W. 284, 37 Tex. Crim. 514, 1897 Tex. Crim. App. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-state-texcrimapp-1897.

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