
    Carter v. The State.
    
      Indictment for Using Obscene language in Presence of Female.
    
    1. Evidence as to former jeopardy. — It was not error to exclude evidence ol' what took place before a justice of the peace, on an issue of former jeopardy, where the only question was as to whether the’ justice, on the former hearing, had jurisdiction, and that fact was, in legal effect, admitted by the pleadings.
    2. Objection to remarles of counsel — It was not error to refuse to exclude from the jury the solicitor’s remarks to the effect that the jury must find that the prosecuting witness lied before they could acquit defendant.
    3. Court may permit replication to be written out in form after trial.— It is within the discretion of the court to permit the replication to be, written out after the .trial on the facts began.
    
      4. Charge as to former jeopardy. — Where the evidence was undisputed that the offense was committed, if at all, more than 60 days before a prosecution before a justice began, it was proper to instruct the jury that the justice had no jurisdiction on the former hearing, and that the prisoner had therefore not been in former jeopardy.
    5. Whether language used in presence of female is obscene is for jury.— In a trial for using insulting or obscene language in the presence of a female, it is for the jury to determine whether the language was of the character charged.
    6. Motion for nevj trial in criminal case not reviemable. — The supreme court has no jurisdiction to revise a ruling on a motion for new trial in a criminal case.
    7. Argumentatire charge. — Requests to charge that the jury may find the defendant not guilty without finding whether the prosecutrix swore falsely or not are argumentative.
    Appeal from Pike Criminal Court.
    Tried before the Hon. William H. Parks.
    The appellant was indicted, tried and convicted for using abusive, insulting or obscene language in the presence or hearing of a female.
    The defendant pleaded not guilty and former jeopardy. The solicitor for the State replied «orally to said pleas. The defendant asked that the replication be put in writing, whereupon the State ordered the solicitor to put it in writing, and permitted the solicitor to proceed with the trial, and to subsequently write out his replication. To this action of the court the defendant duly excepted. The special plea of former acquittal, and the substance of the replication thereto are sufficiently stated in the opinion.
    It was shown by the evidence introduced on the trial, that this prosecution was commenced before a justice of the peace in Pike 'county, by making complaint before him on January 17, 1895; that a warrant of arrest was issued, and under it the defendant was carried before a justice of the peace, and there waived a trial, and gave bond to appear at the next term of the Circuit Court to await the action of the grand jury. The complaint, warrant of arrest, bond and judgment of the justice, were, introduced in evidence. The defendant offered to prove ill at he made no demand for a trial by jury before the justice; that the said justice declined to try the cause finally, upon the ground that he had no jurisdiction of it; and that he, the defendant did not waive the final trial before said justice of the peace. The solicitor for the State separately objected to each portion of this testimony, which separate objections the court sustained, and the defendant separately excepted to each of said rulings of the court.
    Minnie Pryor, a State witness, testified that in August, 1894, she wont from her house to the spring, to got a bucket of water ; that defendant was at the spring, and when she saw him she was frightened nearly to death. Defendant asked her if she knew whore Pomp was, and she said no. Pomp lived in sight about 50 yards on the hill. Then defendant told her he would give her two dollars and a half if she would meet- him over at a designated place in the field about a mile from the spring. She replied she would not do it, and then he said: “I will give you five dollars if you will.” The spring was about one hundred yards from her house, and was used to supply water for use at the house, and was under a hill from the house. She knew the defendant, and had seen him often. No one was present but defendant and witness. The defendant testified that he was not at the spring and did not use the language testified to by Minnie Pryor, and that he had no conversation with her. The solicitor in his argument to the jury, among other things, said : “Before you can acquit this defendant you must find that Minnie Pryor has sworn to a lie.” The defendant objected to this part of the solicitor’s argument, and moved, to exclude the same from the jury. The court overruled the objection and motion, and the defendant duly excepted. In the course of Ms argument, the solicitor further said: “Are you going to acquit this defendant, after Minnie Pryor has brought her case to you, and let her go home and tell the people that she brought her case to the jury, and they found that she had lied.” To this portion of tlie solicitor’s argument the defendant objected, and moved to exclude it from the jury. The court overruled the objection and motion, and the defendant duly excepted. The bill of exceptions recites : “The court instructed the jury that under the evidence in this case the defendant .had not been put in former jeopardy and to this instruction the defendant duly excepted.
    The defendant requested the court to give to the jury the following written charges, and separately excepted to the court’s refusal t-o give each of thorn as asked : (1.) “If the jury believe the evidence, they should find ■ the defendant not guilty.” (2.) “The language used in the case, as testified to by the witness Minnie Pryor, was nob obscene, profane or insulting, or prohibited by the statute, and there a,re no other words or circumstances in evidence which import or give to them such meaning.” (3.) “The language in this case was not in themselves obscene, insulting or profane, or prohibited by the statute from being used ; and before they can be so considered the evidence of the witnesses must show that they were so connected with other words as to-render them such.” i4.) “If you find the defendant not guilty, that finding is not a deciding by you that Minnie Pryor swore falsely.” (5.) “You do not have to find that Minnie Pryor swore falsely before you can find the defendant guilty.” (6.) “You may find the defendant not guilty without deciding whether Minnie Pryor swore falsely or not.” (7,) “The language used in this case, or testified to by Minnie Pryor, is not insulting, profane or obscene, or prohibited by the statute. ’ ’
    After the return of the verdict of the jury, finding the defendant guilty as charged in the indictment, the defendant made a motion for a new trial. This motion was overruled, and the defendant duly excepted thereto.
    Hubbard, Wilkinson <fe Hubbard, for the appellant.
    Wm. G. Fitts, Attorney-General, for the State.
   HEAD, J.

The special pleadings in this case are peculiar. The defendant was tried upon an indictment charging the statutory offense of using abusive language, &c. In connection with the plea of not guilty, he interposed in bar of the prosecution, what he termed a special jilea of “former jeopardy," in which he alleged that he had theretofore “been put in jeopardy, in this cause, to-wit, in this : on the 26th of January, 1895, W. W. Pryor made complaint, and affidavit before R. G. Jackson, a justice of the peace for Pike county, Alabama, which charged the same offense as in this cause charged, that upon said complaint said Jackson had jurisdiction to finally try and determine said cause and issued a warrant of arrest, under which defendant was arrested and brought before said Jackson, for trial on a sufficient complaint, whereupon defendant waived trial before the grand jury and required defendant to enter into bond to appear at next term of the Circuit Court to await the action of the grand jury.” The prosecuting attorney admitted this to be a good plea in bar of the indictment, by interposing to it what is termed a replication. This replication alleges, practically, the same facts as those set up in and implied by the plea, with the single further statement that the offense charged was not “an offense over which a justice of the peace has jurisdiction, as it ivas committed more than sixty days before prosecution was begun.” The judgment-entry, after reciting the interposition of the plea of not guilty and the special pleas and replication, recites that issue was joined “on said ideas.” We take this as showing that issue was joined on the replication. The plea of not guilty and the special defense were, without objection, submitted for trial together before the same jury. The verdict, in terms, responded only to the issue of not guilty, finding the defendant guilty and assessing a fine, making no allusion to the special defense.

It will thus be noticed that the only special issue raised upon the record, for trial before the jury, was whether the offense ivas committed more than sixty days before the prosecution was begun; hence it is that the several questions raised on the trial, as to what occurred before the justice of the peace, were irrelevant and immaterial. That which the court was asked to admit, on that line, was no more than what was in legal effect' confessed by the pleadings, and to reject it was not reversible error.

There was no error in the refusals of the court to exclude the portions of the solicitor’s argument to which objections were made.

It was within the discretion of the court to permit the replication to be written out after the trial on the facts began. The defendant was denied no right to demur to it, after it was written out, if he had desired to pursue that course.

The undisputed evidence sustained the replication, viz. : that the alleged offense, if committed at all, was committed more than sixty days before the prosecution was begun. The court, therefore, properly instructed the jury that, under the evidence in the case, the defendant hurl not been put in former jeopardy. As the defendant has not, by hi* bill of exceptions, made it to appear otherwise, .wo will presume the charge was requested by the solicitor, in writing. We cannot suppose, in the absence of a showing to that effect, that the court, of its own motion, without written request, charged upon the effect of the evidence. Lest it be thought that some sanction is given by us to the alleged defense of former jeopardy, if presented in some other shape than that in which the pleadings presented it in this case, we remark that the defense attempted was frivolous, and the plea, if the court had been moved thereto, ought to have been stricken out as such.

Tt was clearly within the province of the jury to determine whether the language imputed to the defendant by Minnie Pryor was insulting or vulgar or not. Charges 1, 2, 3 and 7 were, therefore, properly refused.

Charges 4, 5 and six were mere arguments.

We have no jurisdiction to revise the rulings of the lower court on motions for now trials in criminal cases. That jurisdiction is confined, by the statute, to civil eases. The bill of exceptions recites that the proper venue was proven.

There is no error in the record.

Affirmed.  