Ellis v. Pratt City , 113 Ala. 541 ( 1896 )

HEAD, J.

Assuming that the appellant was tried in the court below upon the charge set forth in the complaint found in the record, we are unable to see in the bill of exceptions any evidence sufficient to support a conviction. The charge is that the defendant disturbed the peace of others, and the means alleged were violent, offensive or boisterous conduct or carriage, or loud or unusual noises, or profane, obscene or offensive language calculated to provoke a breach of the- peace, or being drunk or in a state of intoxication in a public place, or in a private place to the annoyance of others. In view of the election made by Pratt City to prosecute only for what occurred before the police officers went to the appellant’s house at night to arrest him, the only testimony tending, in anywise, to support the charge, is that of Maggie Botterell, who testified that on the 20th day of December, 1896, she, with her father, mother and other members of the family, resided in one side of a house, the other side of which was occupied by defendant and his wife ; that on said day she heard defendant, in his own room, quarrelling with his wife ; that defendant was not talking very loud and she heard no cursing or swearing; but that the father of witness was sick, and the talking disturbed him.

It is obvious that this testimony is wholly insufficient to prove that the sick man was disturbed by either of the means charged in the complaint.

The proof is conclusive that what occurred at night, as testified to by other witness, was after the police officers had arrived at the appellant’s house and were seeking to arrest him.

The charge was not sustained; and the judgment of the circuit court wall be reversed, and a judgment here rendered discharging the appellant,

Reversed and appellant discharged.