Commonwealth v. Foley

On the trial of an indictment for being a common railer and brawler, loud and violent language used by the defendant in the heat of sudden altercations may be given in evidence, although used only in his own dwelling-house and addressed only to the persona with whom the altercations occurred; and will sustain the charge, if, with other evidence, it shows that he was accustomed to use immoderate and vituperative language so publicly and frequently as to be a common disturber of the public peace.

Complaint for being a common railer and brawler and disturber of the peace. At the trial in the superior court, before Vose, J., on appeal from a trial justice, the jury returned a verdict of guilty, and the defendant alleged exceptions as follows: “ The evidence on the part of the Commonwealth tended to show that the defendant, on many occasions, several times each week, within the time mentioned in the complaint, used loud and violent language, generally to some person or persons in or near his dwelling-house, and frequently to his wife when in the house; that the language consisted of opprobrious epithets and exclamations; that on several of these occasions, sometimes on Sunday, in the afternoon, and at other times in the night time of other days of the week, people passing and living in the neighborhood of the defendant’s house (from twenty-five to fifty persons, and once as many as a hundred and fifty) gathered near it, having been attracted thither by his said loud and violent language ; and that, after they were thus assembled, he continued the same, addressed sometimes to the crowd, as well as to another person or other persons in or near the house, and at other times apparently not addressed to any particular person or persons or to the people assembled. “ The defendant testified that on all the occasions complained of he used the language and exclamations, imputed to him, with persons wno came to his house to visit his wife against his will, or to persons who occupied another house of the defendant’s, a few feet distant from the former one, whom the defendant was endeavoring to oust from the premises by legal process, and by whom he was insulted and provoked to use the utterances in question; and asked the court to rule that, if any of the occasions relied on by the Commonwealth were occasions when the defendant was betrayed into violent expressions in the heat of an altercation suddenly arising with some person or persons with whom he came in contact, and these expressions were aimed at the party with whom he was in altercation, such occasions could not be treated by the jury as evidence of the common railing and brawling charged in the complaint. The judge declined so A> rule; and ruled that the language and epithets used on such occasions might be considered with all the other evidence introduced by the Commonwealth.”