Weaver v. State , 79 Ala. 279 ( 1885 )

STONE, O. J.

The indictment pursues the language of the statute, and is sufficient.—Sess. Acts 1880-1, p. 30; Yancey v. State, 63 Ala. 141.

No question is raised by the record as to the ownership or occupancy of the dwelling, described in the indictment as the dwelling-house of Robert C. Lenoir and others named. Conceding that it had been the dwelling-house of Mrs. Weaver’s former husband at the time of his death, and that it thence became her dwelling by virtue of her quarantine rights, this was in her a mere privilege to occupy until dower was assigned^ her. It gave her no title. The title was in the heirs of the deceased husband. She was not compelled to remain in possession ; and if she ceased to occupy it, it ceased to be her dwelling-house. The question, whose dwelling-house it was, raised an inquiry of fact, and not of law. The court was not asked to rule upon it; and if there had been such request, it would seem that the finding must necessarily have been, that it was, at the time, the dwelling of Robert C. Lenoir and his sisters, and not of Weaver and wife. They had voluntarily abandoned it as a dwelling, and had acquired another; and whether Lenoir and sisters had title or not, the testimony tends to show it had become their dwelling-house by the act and consent of Weaver himself.

In the charge asked,'no inquiry is presented as to the ownership or occupancy of the dwelling. It takes the broad ground, that the language imputed is neither “abusive, insulting, nor obscene,” irrespective of the place at which it was spoken, or of the attending circumstances. The testimony, as we have shown, tended to prove that the house was the dwelling of the Lenoirs. If so, they had the right to warn Weaver not to enter it, and to forbid his doing so. Giving him such warning, gave him no causé of offense; .and if he, in reply, uttered the language testified to by either of the witnesses, we can not affirm, as matter of law, that this was not insulting. It was,' at least, a threatened defiance of the warning he had received, not to come again on the premises. This, of itself, would be insulting to the average householder. The language was coarse in itself, and may have been uttered in a very defiant, or insolent manner. The Circuit Court did not err in refusing to give the charge asked.

Affirmed.