Cleveland v. State

Ciuminal Law. Disorderly conduct. Evidence held not to sustain charge of using profane language 'in public highway; criminal statutes not enlarged or extended beyond letter. An indictment under section 1028, Hemingway’s Code (section 1295, Code of 1906), charging a person with using profane language in a public highway in the presence of two or more persons, is not sustained by proof that the language alleged was used at the residence of the defendant from 50 to 75 yards from the highway. Criminal statutes will not be enlarged or extended to embrace offenses not within its letter.

Appeal from circuit court of Forrest county. Hon. R. S. Hall, Judge. Tom Cleveland was convicted for cursing in a public highway in the presence of two or more persons, and he appeals. The 7th assignment of error should reverse this case for the reason that the court failed to sustain a motion to exclude the evidence of the state and find for the appellant for the reason that the state’s own witness Bell and all evidence, in the case show's that it was about 50 or 75 yards from any public highway where the appellant’s home is, and that the language in the indictment was in the appellant’s private home 50 or 75 yards from any public highway, while the indictment charges that the appellant used the language on the public highway and that it developed in the trial in this case, that it was in appellant’s private home if at all used, the most private place known to man. For a construction of section 1112, Code of 1906 and the construing of the statute, see Quin v. The State, 56 Miss. 479, also see The State v. Moore, 24 So. 308. If you will take notice in these cases of an abusive language in yards is not sustained by proof of its used near the yards so the indictment and the proof in the case at bar conflicts and a variance between the indictment and the proof in this case should be reversed and dismissed. The serious question in this case is as to whether the charge can be sustained under the section of the Code referred to. The evidence has been decided upon by the jury, and the driver of the wagon and district attorney did right in not having the children that were being transported to appear in court and testify. This charge could be sustained under the common law, which prohibits the use of profane language. The court is referred to Stewart v. State, 32 L. E. A. (N. S.) 505; City of St. Louis v. Slupshy, 49 L. E. A. (N. S.) 919, 32 Cyc. 579B, 580, note 21; Garee v. State, 71 Ala. 7.