Manley v. State

The offense is abusive language; punishment fixed at a fine of fifty dollars.

The appellant is charged in the complaint and information with two counts: one with an assault upon C.C. Warnoch; the other with abusive language to the said C.C. Warnoch. There was evidence supporting both counts. The conviction, however, was on the count charging abusive language.

A reversal is sought by reason of certain matters that took place prior to the giving of the written charge. Originally, no written charge was requested. The court verbally instructed the jury. No Complaint was made of this at the time. In connection with the verbal charge, the court read to the jury two articles of the statute, one relating to the use of a language calculated to disturb the public peace and the other relating to abusive language. He also copied those articles and gave them to the jury. After these verbal charges were given and during the argument of the case, some controversy arose between the attorneys for the appellant and the State touching the clauses of the statutes which had been read to the jury, and after the argument had closed, and the jury had retired to consider their verdict, the counsel for the appellant requested the court to instruct the jury in a written charge. The court informed them that he would do so and prepared a written charge embracing the law of assault and abusive language. He withdrew the previous charge given, both that which was given verbally and the articles of the statute which were copied, and instructed the jury to rely upon the written charge last given as the instructions which would govern them and to disregard all others. The irregularities which characterize the trial seem to have grown out of the manner in which it was conducted with the acquiescence of counsel for both the State and appellant. The law did not require the court to give a written charge in the first instance. He did not only instruct the jury verbally, but in connection with the verbal charge, he read certain articles of the statute. One of these articles was not applicable to the case. The other did apply to the phase of the case upon which the conviction now rests. No complaint was made of this action of the court, and without objecting to it, the case was argued, when, for the first time, the demand for a written charge was made. The court gave it in terms which are not complained of, withdrawing his previous charge. We understand the law to permit the court to withdraw a charge, especially under the circumstances which the present record reveals. Lott v. State, 60 Tex.Crim. Rep., 131 S.W. Rep., 553; Cyc. of Law Proc., Vol. 38, page 1787; Century Digest, Crim. Law., Sec. 2065.

The affirmance of the judgment is deemed the proper disposition of the case and it is so ordered.

Affirmed.

ON REHEARING. October 17, 1923.