Hamilton v. State , 153 Ala. 63 ( 1907 )

SIMPSON, J.

— The appellant was arrested under an informal affidavit charging several offenses, and, among them, that of cursing in the presence of females. At the trial the state ivas permitted to amend the affidavit so as to charge that the defendant, “in the presence and hearing of a woman, made nse of abusive, insulting, or obscene language,” which amended affidavit was duly verified. Said affidavit was verified before a notary public, and there is no force in the objection to it on the ground that it was not “verified in open court.” There is no law requiring such affidavits to be verified in open court.

There was no error in allowing the substituting of the amended affidavit, whereby the defect in the original affidavit was cured. — Code 1896, § 4306; Wright v. State, 136 Ala. 139, 34 South. 233.

There was no error in overruling the motion to exclude the entire testimony of the witness Cooper. The date, the place, and the circumstances show that the matter testified about relates to the same conversation which had been testified about by the other witness, and it tended to prove the offense charged in the affidavit.

There was no error in the refusal of the court to exclude the remark of the solicitor that defendant had said he would “kill John Rogers and six more like him,” as there had been testimony of that fact without objection; and it was a part of the conversation in which the “abusive, insulting, or obscene language” was used.

There was no error in the overruling of the motion to “require the state to elect as to whether it was prosecuting the defendant for cursing on the railroad track, or on the platform of the station house,” as it was all one continuous conversation. — Carl v. State, 125 Ala. 89, 105, 28 South. 505; Willis v. State, 134 Ala. 429, 450, 33 South. 226.

The judgment of the court is affirmed.

Tyson, C. J., and Dowdell and Denson, JJ., concur.