Rollings v. State , 136 Ala. 126 ( 1902 )

SPIARPE, J.

Defendant was tried upon an indictment charging him AAdth using abusive, insulting or obscene language in the presence of a woman. There was eAndence tending to show defendant while intoxicated uttered the objectionable language on the porch of a dAvelling house in which there were women, and that on leaving the house he made a similar utterance Avhile he was between the house and the yard gate. Against objection a Avitness examined about the occurrence on the porch was allowed to testify that in his judgment the females were near enough to hear the language, and with reference to Avhat defendant said in the yard amother witness was allowed to testify that in his judgment it could have been heard by the Avomen in the house. These statements were not of conclusions merely, but being based on knowledge of the manner of the utterances and of the situation of the females, they Avere statements of collective facts proper to be admitted in evidence. — McVay v. State, 100 Ala. 110.

Tn the refusal of charges 1, 2 and 4 requested by defendant there was no error, because they were each in substance given in the second charge given at his request. Charge 3 was bad because it was a mere argument.

Among otlier things the court instructed the court orally, “If you find the defendant guilty it' then becomes your duty to, assess a fine ag’ainst him not exceeding two hundred dollars. It. is for you to fix the amount of the fine. The court has no power to say what it shall be. If you believe beyond a reasonable doubt from the evidence that the defendant used the language testified to by the witnesses', in the presence or hearing of a female, then I charge you that the maximum fine of two hundred dollars would not be excessive.” The instruction so given as to what would not he an excessive fine was erroneous. It invaded the jury’s province in a matter which the law committed exclusively to1 their determination. It was naturally calculated to influence their verdict in the direction of the maximum fine, and that the verdict was not so influenced does not necessarily follow from the fact that the fine actually assessed Avas smaller than the maximum. See Leech v. Waugh, 24 Ill. 228; 11 Ency. PI. & Pr. 209.

Eeversed and remanded.