{
  "id": 1894529,
  "name": "State v. Murphy",
  "name_abbreviation": "State v. Murphy",
  "decision_date": "1884-05",
  "docket_number": "",
  "first_page": "178",
  "last_page": "180",
  "citations": [
    {
      "type": "official",
      "cite": "43 Ark. 178"
    }
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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      "cite": "34 Ark, 550",
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      "cite": "40 Ark, 361",
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      "cite": "34 Ark, 550",
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  "last_updated": "2023-07-14T18:16:37.449042+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "State v. Murphy."
    ],
    "opinions": [
      {
        "text": "Smith, J.\nThe indictment in this case charges that \u201c J. M. Murphy, on the first day of October, 1882, in the County, &c., then and there, being at the private residence of one W. L. Niday, did make use of profane and insulting language in the presence of, about, towards and in the hearing of Mrs. Rachel Lucinda Niday, wife of the said W. L. Ni-day, which language in its common acceptation was calculated to cause a breach of the peace, against the peace and dignity of the State. &c.\u201d\nThe court below sustained a general demurrer to it and discharged the defendant.\nThe indictment follows the language of Section 1512, of Gantt\u2019s Digest, upon which it is based, and which creates the offence. And upon a comparison of it with the forms approved in Hearn v. State, 34 Ark., 550 and State v. Hutson, 40 Id., 361, it will be found to differ trom them only in the omission of the word \u201c unlawfully.\u201d It is insisted that this omission vitiates the indictment.\nIn Chitty\u2019s Criminal Law, Vol. 1, p. 341, it is said:\n\u201c The term \u2018 unlawfully,\u2019 which is frequently used in the description of the olienee, is unnecessary wherever the crime existed at Common^Law and is manifestly illegal. So it has been adjudged that it need not be used in an indictment for a riot, because the illegality is sufficiently apparent without being averred. But if a statute, in describing the offense which it creates, uses the word, the indictment founded on the act will be bad if it be omitted; and it is, in general, best to resort to it, especially as it precludes all legal cause of excuse for the crime\u201d.\nEvery indictment should show plainly on its face, whether the crime is treason, felony or misdemeanor. The indictment for treason alleges that the act was committed traitorously; for felony, that it was done feloniously; and the omission- of these words indicates that the offence was no more than a misdemeanor, 1 Bish. Cr. Pro. Sec. 534.\nThe disturbance of the public peace by the use of profane, violent, abusive or insulting language is a statutory offence. But the statute, in describing the offence, does not use the word \u201cunlawfully\u201d. And wherever this is the case, and the act charged in the indictment appears to be unlawful, it is unnecessary to allege it to have been unlawfully done, Capps v. State, 4 Clarke (Iowa) 502.\nIt can be understood from this indictment that it was found by a grand jury and that the offence was committed within the jurisdiction of the court, prior to the finding of the indictment. And the offence is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction. Gantt\u2019s Dig. Sec\u2019s. 1781-2.\nReversed and remanded with directions to overrule the demurrer and to require the defendant to plead.",
        "type": "majority",
        "author": "Smith, J."
      }
    ],
    "attorneys": [
      "O. B. Moore, Att\u2019y Gen\u2019l, for appellant.",
      "J. M. Murphy, pro se."
    ],
    "corrections": "",
    "head_matter": "State v. Murphy.\n1. Indictment : Charging offence to be 'l unlatvfully \u201d done.\nIt is not necessary for an indictment to charge that an offense was \u201c unlawfully \u201d done, if the statute describing the offense does not use the word \u201c unlawful.\u201d\nAPPEAL from Van Bur\u00e9n Circuit Court.\nHon. F. T. Vaughan, Circuit Judge.\nO. B. Moore, Att\u2019y Gen\u2019l, for appellant.\nThe indictment is in the words of the statute. Gantt\u2019s Dig., Seo. 1512; 33 Ark., 140 ; 40 Ark, 361.\nJ. M. Murphy, pro se.\nThe indictment was based upon the Act of March 21st, 1881, and fails to follow the language. It is clearly insufficient. Acts of 1881, p. 135; State v. Moser, 33 Ark, 140.\nIt is not good under Sec. 1512, Gantt\u2019s Digest, as it does not contain the word \u201cunlawfully,\u201d which is as necessary in misdemeanors as \u201c maliciously \u201d is in felonies. 34 Ark, 550 ; 40 Ark, 361."
  },
  "file_name": "0178-01",
  "first_page_order": 202,
  "last_page_order": 204
}