Byrd v. Commonwealth

¶1delivered the opinion of the court.

¶2*836This is a prosecution for an alleged violation of section 3780-a of the Code, which is as follows: “If any person shall, in the presence or hearing of another, curse or abuse-such person, or use any violently abusive language to such person concerning himself or any of his female relations,, under circumstances reasonably calculated to provoke a. breach of the peace, he shall be deemed guilty of a misdemeanor, and on conviction shall b.e fined in any sum not less than two dollars and fifty cents nor more than five hundred dollars, in the discretion of the justice trying the case.” (Acts 1910, p. 18.)

¶3[1,2] It is necessary in the outset to construe this statute. The defendant contends that in order to constitute an offense thereunder, the insulting words must be-used in the presence of some third person as well as in the presence of the person to or about w,hom they are spoken. The statute is possibly not entirely clear in this respect, and the construction contended for finds support in the obvious fact that as a rule the presence of third persons -adds aggravation to direct personal insults. To adopt this view, however, it would be necessary to read into the statute some additional expression with which to connect the words “such person.” Taking the language as a whole, and considering the subject matter and reason of the enactment, we are of opinion that the contrary view, advocated by the-Commonwealth, is correct. In other words, the expression, “such person,” refers to the person “in the presence or hearing of” whom the insult is offered; and the offense is complete whenever insulting language is spoken to or about another, or about his female relations, In his presence and under circumstances reasonably calculated to provoke a breach of the peace, regardless of the presence or absence of third persons. The title of the act, to which we may properly refer in determining its meaning (36 Cyc. 1133; C. & O. Ry. Co. v. Pew, 109 Va. 288, 293, 64 S. E. 35), de*837dares its purpose to be “to punish a person for using abusive language to another” without any reference whatever to the presence of third persons. Similar statutes in other States plainly omit any requirement of the presence of others than the person insulted as an element of the offense. See, for example, Moore v. State, 50 Ark. 26, 6 S. E. 17; Watkins v. State (Tex. cr. app.), 44 S. W. 507; Dyer v. State, 99 Ga. 20, 25 S. E. 609, 59 Am. St. Rep. 228.

¶4[3] The defendant, R. J. Byrd, was tried by a justice of the peace in the city of Hopewell, and fined $25.00 upon a warrant charging that, in said city, he “did, on various times in June, 1918, unlawfully slander and abuse Mrs. M. J. Connelly by using vulgar and obscene language to and about her.” On appeal to the corporation court, the warrant was amended, on defendant’s motion, by adding, after the words last quoted, the words “in the presence of her husband, under circumstances reasonably calculated to produce .a breach of the peace.” In a jury trial which followed, he was again found guilty and sentenced to pay a fine of twenty-five dollars. It is this sentence which is now under review.

¶5The only evidence offered to sustain’ the warrant showed that Byrd had made derogatory and insulting remarks about Mrs. Connelly to her husband, but not in her presence. Whether any person, except Byrd and Connelly, was present, does not appear.

¶6This evidence was objected to on the ground that it did not tend to prove the offense charged in the warrant, which, as contended by the defendant, was the use of insulting words to Mrs. Connelly in the presence of her husband. The action of the court in overruling this objection is the subject of the first assignment of error.

¶7The court was right. The only objection made to the form of the warrant was met by the amendment already indicated. As thus amended, while it was imperfectly *838phrased, the warrant was sufficient in substance to charge that the defendant had used abusive language about Mrs» Connelly in the presence of her husband under circumstances reasonably calculated to provoke a breach of the peace.

¶8It was'further urged, upon the hearing in this court, that the evidence was inadmissible, even if it did tend to prove the charge in the warrant as amended, because no third person was shown to have been present. This argument is disposed of by the construction which we have placed upon the statute.

¶9[4] During the course of the trial, the defendant offered to prove that the offensive words spoken by him toConnelly about the latter’s wife were true. The court, upon the Commonwealth’s objection, refused to admit this evidence, and its action in that regard is assigned as error.

¶10Counsel for defendant concedes, and it is clear upon reason and authority, that the evidence was not admissible in bar of the prosecution (Dyer v. State, supra;8 R. C. L., p. 286, sec. 307); but the contention here is that the defendant ought to have been allowed to prove the truth of the defamatory words in mitigation of the punishment. For this’ latter purpose, the evidence was proper, and should have been admitted. The objection seems to have been general in its form, and as the evidence was admissible for some, even though not for ¡all, purposes the objection ought to have been overruled. Washington R. Co. v. Trimyer. 110 Va. 556, 860, 67 S. E. 531.

¶11[5, 6] We do not understand that the Commonwealth controverts the admissibility of the evidence in question for the purpose indicated. Its contention is that, as the fine was comparatively small, the error should not be regarded as prejudicial. The amount of the fine is materially larger than the minimum fixed by the statute, and we-cannot say that the error was harmless.' It is probably* *839true that in many cases, as in this particular case, the in-suiting words spoken to or in the presence of another about his female relations, may be of such a character as that their truth would not be accorded very much, if any, weight in mitigation of the offense; but by analogy to the rule in civil action for defamation (Code, sec. 3375, and cases cited), and in accordance with what we regard a safe and proper general practice, such evidence, when offered, should be received for what it is worth as an aid in fixing the punishment.

¶12The only remaining assignments of error requiring any particular discússion may be dealt with jointly. They relate to: (1) the refusal of the court to instruct the jury that the Commonwealth had to prove that the alleged offense was committed within the local jurisdiction of the court, and (2) the denial of the motion for a new trial because of a total failure of proof on that point.

¶13[7, 8] It .will be conceded that the Commonwealth was bound to establish the venue, and that, regardless of instructions, if there was no proof at all as to where the offense was committed, the verdict should have been set aside and a new trial awarded. Fitch’s Case, 92 Va. 824, 827, 24 S. E. 272.

¶14The failure clearly to prove venue is usually due to inadvertence, flowing naturally from the familiarity of court, counsel, witnesses and jurors with the locality of the crime; and appellate courts will generally and properly lay hold of and accept as sufficient any evidence in the case, direct or otherwise, from which the fact may be reasonably inferred. In this case, however, there is nothing in the evidence before us upon which to base eren a surmise as to where the insulting words were spoken. Nor is there any reason to regard the question as lacking in substantial merit. The record discloses that the defendant raised the *840point and seriously relied upon it before the case went to the jury.

¶15[9,10] To meet this situation, it is contended on behalf of the Commonwealth, that there is no bill of exceptions showing all the instructions given or all of the evidence introduced, and that, therefore, this court must presume that the rejected instruction was covered by some other one given in the case, and, likewise, that there was evidence not certified as a part of the record which showed that the offense was committed within the jurisdiction of the court. If the assumption on which this argument is based were correct, the conclusion contended for would follow. McArter v. Grigsby, 84 Va. 159, 4 S. E. 369; 4 Min. Inst. (3d ed.) 1080; Burks’ Pl. & Pr., p. 518, sec. 289-a; Teter v. Ins. Co., 74 W. Va. 344, 82 S. E. 40.

¶16But the defendant’s seventh bill of exceptions manifestly contains the whole of the evidence, and also shows that the one and only instruction given did not relate to the venue. The court certifies therein that “the following evidence was introduced by the Commonwealth to maintain the issue,” and then sets out evidence which, when taken in the light of the other bills, could not have reasonably been intended by the court as anything but a certificate of all the evidence in the case. This is followed, in the same bill, by the statement that “the court instructed the jury as follows,” setting out a single instruction which plainly purported to apply to the evidence as a whole. This bill of exceptions, the final one in the record, is purposeless and meaningless except in one embracing all the evidence and all the instructions.

¶17In principle, we have here the same situation and must apply the same rule as this court applied in Manchester Loan Association v. Porter, 106 Va. 528, 533, 56 S. E. 337, 338, where Judge Buchanan said: “It is quite true, as argued, that the bill should state, or it should appear by *841clear inference, that the evidence which is certified is all the evidence; otherwise, the appellate court will not know upon what the lower court based its action, and its judgment on the evidence will be presumed to be right. McArter v. Grigsby, 84 Va. 159, 4 S. E. 369, and authorities cited. When a court certifies that the evidence introduced on the trial was as follows, and sets it forth without anything in the record to show, as in this case, that it was not all the evidence, it is not only a clear, but a necessary inference that it was all the evidence introduced.”

¶18It follows that there was plain and vital error in denying the motion for a new trial.

¶19There were two other assignments of error, but they were not sound, resting upon the fallacious theory that proof of insulting words spoken to Connelly about his wife, but not in her presence, or in the presence of a third party, did not constitute any offense either .as charged in the warrant or as chargeable under the statute. The effect of the warrant and of the statute in this regard has already been sufficiently discussed.

¶20For the errors above pointed out, the judgment will be reversed and the cause remanded for a new trial to be had not in conflict with the views herein expressed.

¶21Reversed.