Wallace v. State

SIMKINS, Judge.

Appellant was convicted of tbe offense of going near a private bouse and using obscene and vulgar language, in a manner calculated to disturb tbe inhabitants thereof. Penal Code, art. 314. After a careful examination of tbe facts, we are unwilling to affirm this case. It seems that appellant, a boy of 13 years of age, was driving bis wagon along tbe road in front of tbe bouse of one Rowland on tbe evening of August 31, 1893. As be was passing, Rowland came out and stopped him, and began upbraiding him for fussing with bis (Rowland’s) son, threatening to have him arrested, and also to slap him off tbe wagon. This witness states, that as appellant drove away be uttered tbe remarks complained of, and no one was present but witness’ son; that bis wife was not present, but was some twenty or thirty feet away, under an arbor, at tbe table, and it was supper-time. Mrs. Rowland says tbe remark was made to her, and not to her husband; that when her husband stopped tbe boy she went out and talked with tbe boy and threatened to have him arrested, and her husband left and went into tbe house; that it was supper-time, and as tbe boy drove away be made tbe remark to her. Tbe boy denies that be made such a remark, or that be saw Mrs. Rowland, or that she spoke to him, or be to her. Tbe record further shows that tbe boy has been arrested on four different complaints — one charging an assault on their son, and three for using obscene language; three sworn to on tbe 7th and tbe present complaint on tbe 20th of September. He has been acquitted on the assault charge. Two charging-obscene language have been dismissed. Tbe record tends strongly to suggest that these State witnesses are moved by revenge rather than to see justice done. Prosecuting officers should be slow to permit such proceedings. If the remark was made — -which tbe good character established by tbe boy would tend to disprove — yet tbe evidence fails to show with reasonable certainty that it was made in a manner calculated to disturb tbe persons living in tbe house.

Tbe judgment is reversed and tbe cause remanded.

Beversed and remanded.

Judges all present and concurring.