Orf v. State , 147 Miss. 160 ( 1927 )

^* Corpus Juris-Cyc References: Damn, 17CJ, p. 1123, n. 7 New; Profanity, 32Cyc, p. 578, n. 3; p. 579, n. 14. Definition and essential elements of blasphemy and profanity, see annotation in 22 L.R.A. 353; 14 A.L.R. 880; 4 R.C.L. pp. 39, 40; 4 R.C.L. Supp. 248. Appellant was convicted in the circuit court of Alcorn county of the crime of profanity, and sentenced to pay a fine of fifty dollars and costs. From that judgment he prosecutes this appeal.

In a public place, namely, at one of the doors entering Union Church, with one of his hands resting on the facing of the door, at a time when Sunday school was being held in the church and those in attendance were standing to be dismissed, appellant, in the presence of more than one person (referring to the fact that the Sunday school was being dismissed), used the following language: "Well, the damn thing is done broke up."

The question is whether, under section 1295, Code of 1906 (section 1028, Hemingway's Code), appellant was guilty of the crime of profanity as denounced by that statute. The statute provides that, if any person shall profanely swear or curse, or use vulgar or indecent language, or be drunk in any public place, in the presence of two or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars.

In State v. Wiley, 76 Miss. 282, 24 So. 194, 71 Am. St. Rep. 531, the defendant was indicted under section 1219, Code of 1892, which provided that, if any person should profanely swear or curse in any public place, in the presence of two or more persons, he should, on conviction, be fined not more than ten dollars for each offense. In the Wiley case, the court held that the statute was violated by the use by the defendant, in a public place, before more than one person, of the language, "You are a damn rascal and a damn liar." The court said in that case that it was not absolutely necessary, in order to constitute a violation of the statute, that the name of the Deity should be used; that profanity consisted of any words importing an imprecation of Divine vengeance, or implying Divine condemnation, so used as to constitute a public nuisance. In Sanford v. State, 91 Miss. 158, 44 So. 801, the same statute was involved. The language used by the defendant, as constituting a violation of the statute, was, "Go to hell, you low-down devils." The court held that the statute was not violated, because the language used by the defendant lacked the imprecation of Divine vengeance, and did not imply Divine condemnation. The holding in the Wiley case was not modified by the court in that case; on the contrary, it was referred to with approval.

In the definition of "damn," given in Webster's Dictionary, are:

"To invoke condemnation; to curse; to swear; to invoke condemnation upon; to condemn to eternal punishment in a future world; to consign to perdition."

We think the Wiley case is decisive of the question here involved in favor of the holding of the trial court. We think the language "Well, the damn thing is done broke up" (referring to the Sunday school being held in the church), implied Divine condemnation, and was "so used as to constitute a nuisance."

Affirmed.

HOLDEN and COOK, JJ., dissenting.