State v. Byrnes , 100 S.C. 230 ( 1915 )

March 13, 1915. The opinion of the Court was delivered by Conviction before the mayor and a jury at Hartsville for violation of a city ordinance; appeal to the Circuit Court, and there the judgment of the mayor's Court was affirmed; appeal here.

The arrest warrant charged: "That T.J. Byrnes, in said town, county and State, on April 5, 1913, unlawfully did disturb the peace and quiet of the town of Hartsville by loud and boisterous language, profanity and drunkenness, and otherwise riotous and offensive conduct, and thereby violated the ordinance in such case made and provided against the peace and dignity of said town and State."

The verdict was "guilty as to loud and boisterous language and profanity."

The six exceptions which were before the Circuit Court are repeated here; and in addition thereto there are yet three more exceptions to the judgment of the Circuit Court; nine all told. Let them be reported.

The issues made, however, are not so many; the appellant's counsel, in a lucid and strong argument, has discussed four issues, and we shall deal with only four. They raise these inquiries:

(1) The selection of the jury was unlawful?

(2) There was no evidence of disorderly conduct?

(3) The rights of the castle justified the conduct?

(4) The charge of the magistrate was unlawful?

The town of Hartsville has three policemen — Kirkpatrick, the chief, and Gilbert and Falsom. In the instant case Falsom swore out the arrest warrant. The procedure for the selection and empaneling of a jury is prescribed by sections 59 and 29 of the Criminal Code and section 1395 of the Civil Code. The exact issue made here is, that Kirkpatrick, who selected the eighteen names from which the jury was to be chosen, had a bias which disqualified him for that service; and for authority the appellant cites Abbeville v. Gooseby, 93 S.C. 371,76 S.E. 977.

The bias suggested is that "Kirkpatrick was the man who knew the circumstances; he was the man upon whom the town relied largely in making its case."

The testimony does not establish that contention; on the contrary, it shows that Officer Gilbert was on duty on the midnight in question; that he heard the language of defendant; that he repaired to the place of its utterance; that he arrested defendant; that he then "went and saw the chief and he said his bond would be fifteen dollars;" that "finally the chief came up and insisted upon him giving bond."

It is true the chief pulled defendant out of the door and started with him to the guardhouse; but that was not for the disorderly conduct, but for defendant's refusal to give bond.

The chief had not been a witness to the disorderly conduct; and that was the gravamen of the offense.

There is, therefore, no reason to hold that Kirkpatrick had such bias against the defendant about the offense for which he was held to trial as to disqualify him from making up the jury list.

On the second issue, if the witness, Gilbert, is to be credited, there was proof of disorderly conduct. "Counsel agreed that there was a wide difference in the profanity testified to by witnesses. Counsel also agreed the same as quoted by one witness is too indecent to present to this Court." If that be true, there was testimony tending to show profanity, and of its truth the jury was the judge.

But the contention of the appellant is "that there was no proof that any one was disturbed." It is true that a neighbor of the defendant testified he was not disturbed. If, however, the language of the defendant, considering the time and place, was calculated to produce disorder, and was calculated to disturb the public peace and quiet, then such language was unlawful.

The testimony is that the time was near midnight; that the place was in the heart of the town, and that there were four or five persons at or near the place; that the officer heard the language a block away.

If all that be true, then the jury was warranted to conclude that the words were calculated to produce disorder and to disturb that quiet and peace which society is entitled to enjoy. Georgetown v. Scurry, 90 S.C. 349,73 S.E. 373.

And the case is not altered that the defendant uttered the profane and boisterous language within his own house. The "castle" is given to a man for defense, and not for offense.

It would be a hurtful and unreasonable doctrine to hold that a man may utter profanity of a loud and boisterous nature from his own storeroom, and yet not be amenable to the public therefor. If the utterer does remain in the room the utterance does not; and it is the offense.

There yet remains to consider the charge of the mayor to the jury. Let the charge be reported.

The exception is to the charge, and not to the form of the verdict. The sufficiency of the verdict was not gainsaid before the mayor, or before the Circuit Court, or here.

The warrant imputed to the defendant (1) loud and boisterous language, (2) profanity, (3) drunkenness, and (4) it charged that such conduct disturbed the peace and quiet of the town.

The mayor, when the whole charge is considered, submitted three issues to the jury, to wit: (1) Did the defendant utter loud and boisterous language? (2) Did he use profane language? (3) Did that conduct disturb the peace? He did not submit the issue of drunkenness; he told the jury that the town guaranteed peace and order to society.

The charge is free from error.

The jury expressly found the first and second issues against the defendant; they did not find against him the offense of "drunkenness," though the warrant had also charged it; they did not expressly find that the defendant's boisterous and profane language disturbed the peace.

The defendant's remedy for relief from such a verdict, if it was defective, was a motion before judgment to set it aside and for a new trial.

The defendant has never contended, and does not now contend, that the verdict was defective because it did not answer the issues tendered by the warrant and the charge.

The judgment of the Circuit Court is affirmed.