{ "id": 1367883, "name": "Schaal v. State", "name_abbreviation": "Schaal v. State", "decision_date": "1921-12-05", "docket_number": "", "first_page": "631", "last_page": "635", "citations": [ { "type": "official", "cite": "150 Ark. 631" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "29 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882905 ], "opinion_index": -1, "case_paths": [ "/ark/29/0017-01" ] }, { "cite": "90 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513798 ], "opinion_index": -1, "case_paths": [ "/ark/90/0570-01" ] }, { "cite": "99 Ark. 648", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "93 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546802 ], "opinion_index": -1, "case_paths": [ "/ark/93/0020-01" ] }, { "cite": "94 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545386 ], "opinion_index": -1, "case_paths": [ "/ark/94/0327-01" ] }, { "cite": "58 Ark. 47", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329175 ], "opinion_index": -1, "case_paths": [ "/ark/58/0047-01" ] }, { "cite": "31 Minn. 207", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 749148 ], "opinion_index": -1, "case_paths": [ "/minn/31/0207-01" ] }, { "cite": "47 Ark. 488", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888746 ], "opinion_index": -1, "case_paths": [ "/ark/47/0488-01" ] }, { "cite": "12 Ark. 608", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727965 ], "opinion_index": -1, "case_paths": [ "/ark/12/0608-01" ] }, { "cite": "94 Ark. 215", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545388 ], "opinion_index": 0, "case_paths": [ "/ark/94/0215-01" ] }, { "cite": "94 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545386 ], "opinion_index": 0, "case_paths": [ "/ark/94/0327-01" ] }, { "cite": "58 Ark. 47", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329175 ], "opinion_index": 0, "case_paths": [ "/ark/58/0047-01" ] } ], "analysis": { "cardinality": 449, "char_count": 8139, "ocr_confidence": 0.445, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3544513599055389 }, "sha256": "8276b4e243b72b7e40a3ab142c50b7745a2129308865a9aef8f055b5599b548d", "simhash": "1:180085f82c88bc68", "word_count": 1409 }, "last_updated": "2023-07-14T14:41:32.790141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Schaal v. State." ], "opinions": [ { "text": "Woon, J.\nThis is an appeal from a judgfnent of conviction for the crime of a breach of the peace. The indictment, omitting the formal opening and conclusion, as as follows: \u201cThe grand iurv of Howard Countv, in the name and bv the authority of the State of Arkansas, accuse P. W. Schaal of the crime of breach of peace commi'ted as follows, to-wit: The said G. W. Schaal in the county and State aforesaid, on the 3rd day of March, 1921, did unlawfully make use of violent, abusive, and insulting language toward and about one E. K. .Walden and in the presence and hearing, said language in its common acceptation being calculated to arouse to anger the said E. K. Walden and cause a breach of the peace, against the peace and dignity of the State of Arkansas.\u201d\nThe court overruled a demurrer to the indictment and also a motion in arrest of judgment. Section 2774 of Crawford & Moses\u2019 Digest reads in part as follows: \"If any person shall make use of any profane, violent, vulgar, abusive, or insulting language toward or about any other p\u00e9rson in his presence and hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace, and upon conviction thereof shall be punished by a fine, etc.\u201d\nThe indictment charges that the insulting language was \"toward and about E. K. Walden and in the presence and hearing.\u201d The use of the word \"the\u201d before the word \"presence,\u201d taken in connection with the other words in the sentence just quoted, could not have meant anything else -than that the insulting language was used in the presence and hearing of E. K. Walden. The context shows that the word \"the\u201d was intended for the word \u201chis,\u201d and the use of the word \"the\u201d instead was a mere clerical misprision. The indictment charges a public offense under the above statute. The indictment follows substantially the language of the statute and is sufficient. There was no error therefore in overruling\u2019 appellant\u2019s demurrer and motion to arrest. Blais v. State, 94 Ark. 327; State v. Perry, 94 Ark. 215; Evans v. State, 58 Ark. 47.\nThere was testimony on the part of the State tending to show that one Hodge was appointed to act as constable in a replevin suit to take possession of a machine whibh at the time was at the home of the appellant. Hodge was accompanied to appellant\u2019s home by E. Ej. Walden. When they arrived at appellant\u2019s house, Hodge showed appellant the writ in his hands-. The appellant objected to the service of the writ on the ground that it -did not show that Hodge had been legally appointed constable to serve the same, Hodge not being the duly elected constable. When this controversy arose, Hodge referred appellant to Walden, who was an attorney for the plaintiff in thp civil action. Walden stated he thought the papers were regular. Thereupon appellant said to Walden, \u201cWhat in the hell have you got to do with it?\u201d Walden replied, \u201cI haven\u2019t got a thing--only I am attorney in the case.\u201d Appellant then said, \u201cBy Gr \u2014 , you will leave here; I am a good mind to take a billet of wood to you.\u201d Walden remonstrated with him, and appellant further said, \u201cBy \u2014, you will leave here. If you don\u2019t, I will go in the house -and get my pistol.\u201d This all occurred at appellant\u2019s home outside the gate.\nAfter defining the offense in the language of the statute, the court instructed the jury that the burden was on the State to prove the guilt of the defendant beyond a reasonable doubt, and further said, \u201cThe defendant. in this case claims the prosecuting witness, Walden, accompanied Mr. Hodge there for the purpose of serving the papers, and did not have legal authority for that purpose, and that E. K. Walden, after he reached the place to serve the papers, was the aggressor and caused the disturbance. If you find this to be the -case, you may take that fact in mitigation of the punishment of the defendant, if you find the defendant guilty.\u201d The appellant duly excepted to that portion of the instruction which said, \u201cyou may find in mitigation only,\u201d and asked the court to instruct the jury in effect that, if Hodge was not duly appointed special agent to serve the writ, then he was a trespasser, and the defendant would be justified in forcing them to leave the premises. The court refused appellant\u2019s prayer, to which ruling the appellant duly excepted.\nThe court did not err in its ruling. The fact that Hodge was not legally appointed special agent to serve the writ could furnish no 'justification to appellant in using profane, abusive and insulting language toward and about Walden. 8 R. C. L. \u00a7 307, p. 286. Even though Walden and Hodge were proceeding illegally, and in that sense were trespassers, nevertheless such fact would not justify the appellant in using profane and opprobrious language toward and about Walden. The court correctly instructed the jury that they might consider the fact that Hodge and Walden were proceeding illegally in mitigation, if they found the appellant guilty as charged.\nThere is no error, and the judgment is therefore affirmed.", "type": "majority", "author": "Woon, J." } ], "attorneys": [ "James S. MoCon-nell, for appellant.", "J. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee." ], "corrections": "", "head_matter": "Schaal v. State.\nOpinion delivered December 5, 1921.\n1. Abusive language \u2014 indictment\u2014clerical misprision. \u2014 In an indictment under Crawford & Moses\u2019 Dig., \u00a7 2774, which charges that defendant used abusive and insisting language toward and about the prosecuting witness \u201cand in the presence and hearing,\u201d the context shows that the use of the word \u201cthe\u201d instead of \u201chis\u201d was a clerical misprision.\n2. Abusive language \u2014 sufficiency of indictment. \u2014 An indictment for using abusive and insulting language toward another and in his presence and hearing substantially follows the language of the statute and is sufficient.\n3. Abusive language \u2014 defense.\u2014Though the prosecuting witness was a trespasser on defendant\u2019s premises, this fact would not justify defendant in using profane and opprobrious language toward and about him.\nAppeal from Howard Circuit Court; A. P. Steel, Special Judge;\naffirmed.\nJames S. MoCon-nell, for appellant.\nThe indictment is bad and the demurrer should have been sustained. Either the letter or substance of the statute must be followed, and nothing is left to implication, intendment, or conclusion. 22 Cye. 336; 12 Ark. 608; 47 Ark. 488; 31 Minn. 207; 17 3ST. W. 344. The words of the indictment \u201cand in the presence and hearing\u201d mig'ht refer to Hodo-o. or Mrs. Schaal, who were nresent also, and wholly fail to allege that the language complained of was used in the presence of Walden.\nThe indictment not having charged an offense under the statute, appellant\u2019s motion to arrest the judgment should have been sustained. Defendant was entitled to have given an instruction on the legality of the service of the papers by Hodge and the prosecuting witnass.\nThe evidence of the justice shows that the writ was issued March 21, 1921, and served the next day. The indictment charges the offense was committed on'March 3rd. .If this be true, the verdict was contrary to both the law and the evidence.\nJ. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee.\n\u25a0 The indictment is drawn in accordance with the statute. There is a clerical error, however, in the use of the word \u201cthe\u201d for \u201chis\u201d in the following part of the indictment: \u201cAnd in the (his) presence and hearing\u201d but any person of common understanding would understand that the indictment alleges that the words were spoken to and in the presence of the prosecuting witness. Bad or awkward writing will not vitiate an otherwise good indictment. Stan. Euc. of Proc. Yol. 12, pp. 311-317; 94 Ark. ?15; 58 Ark. 47; 94 Ark. 327.\nThe defect was not nn\u00bb which would tend +o the -nretn. dice of the rights of defendant in the trial and judgment. G. Rr, ]Vf. Dip*.. 'S 3014.\nAppellant\u2019s instruction No. 2 is inapplicable to the cuesti\u00f3n at issue and was properly refused. It is not error to refuse to give an inapplicable instruction. 93 Ark. 20; 99 Ark. 648; 90 Ark. 570; 29 Ark. 17.\n\u25a0 Provocation will not iustifv the use of opprobrious words. 8 R. C. L. Sec. 307, p. 286." }, "file_name": "0631-01", "first_page_order": 657, "last_page_order": 661 }