Benson v. State , 68 Ala. 513 ( 1881 )

STONE, J.

The present indictment was found at the Spring term, 1879, before the enactment of the statute to amend section 4203 of the Code of 1876, approved March 1st, 1881.—Pamph. Acts, 30. The purpose of that section of the Code was to shield the family residence, or dwelling, from abusive, insulting or vulgar [obscene] language, uttered in the presence of the family, or any member thereof, or of any female. The language charged' and proved in this case, was addressed to a female in the dwelling-house of another, was coarse, menacing, and emphasized with gross profanity. If the same language had been used to a male, it would doubtless have been construed as insulting; and would have tended to provoke a breach of the peace. Indeed, the defendant himself seems to have considered it insulting; for he turned immediately to a gentleman present, and inquired if he ‘ took it up.’ Why make this inquiry, if there was;no insult to be resented, or taken up ? We would be loth to hold that language which would insult a man, would not be in suiting to a female, because, by reason of her sex and gentler nature, she would not resent it with blows.

There.is a point, however, on the organization of the grand jury, which must cause a reversal of this case. To complete the number of the grand jury up to fifteen, the statutory requisition, it became necessary for the presiding judge to order an'additional number of persons to be summoned. In making the order, he fell into the error of directing them to be summoned from the bystanders.—Finley v. The State, 61 Ala. 201; Cross v. The State, 63 Ala. 40.

The judgment of the Circuit Court is reversed, and the cause remanded, that the Circuit Court may quash the indictment. Let the defendant remain in custody, until discharged by due course of law.