
    PENNINGTON v. STATE.
    (No. 10631.)
    (Court of Criminal Appeals of Texas.
    March 2, 1927.)
    Breach of the peace <&wkey;4 — Information for uttering abusive language held, insufficient in failing to charge that utterance was in presence and hearing of man abused (Pen. Code 1925, art. 482).
    Information charging that defendant used violently abusive language to husband in presence of wife, concerning husband and wife, and cursed husband in wife’s presence, held not to charge offense of uttering abusive language, under Pen. Co*de 1925, art. 482, since it failed to charge that language was uttered in husband’s presence, husband not being a female relative of wife.
    Appeal from Parker County Court; J. E. Carter, Judge.
    Mrs. Bertha Pennington was convicted of uttering abusive language, and she" appeals.
    Reversed, and prosecution ordered dismissed.
    Hood & Shadle, of Weatherford, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

Abusive language is the offense; punishment fixed at a fine of $5.

From the information we take the following .quotation:

“ * * * One Mrs. Bertha Pennington, late of said county and state, did, in the presence and hearing of Mrs. Eula Downs, curse and abuse J. D. Downs, and did then and there use violently abusive language to the said J. D. Downs concerning him and his wife, Mrs. Eula Downs, under circumstances reasonably calculated to provoke a breach of the peace.”

The complaint and information are attacked upon the following ground:

.“And the c'omplaint and information in this canse and each of them do- not' anywhere or place therein allege that the cursing or abusive language was done in the presence and hearing of the alleged injured party; to wit, J. D. Downs, but specifically alleges that the same was in the presence and hearing of Mrs. Eula Downs, another and different person than the alleged injured party, rendering said complaint and information and each of them fatally defective and of no force and effect.”

The statute, article 482, P. O. 1925, reads thus:

“Any person who shall in the presence or hearing of another curse or abuse such person, or use any violently abusive language to such person concerning him or any of his female relatives, under circumstances reasonably calculated to provoke a breach of the peace, shall be fined not more than one hundred dollars.”

The purpose of the law is to prevent a breach of the peace by penalizing the use of violently abusive language in the presence and hearing of the person abused, concerning him or his female relation. The omission to charge in the information that the abusive language was uttered in the presence and hearing of J. D. Downs is, under the pleading, insufficient to charge the offense attempted.

The statement that “violently abusive language was used in the presence of Mrs. Eula Downs concerning J. D. Downs” is not within the térms of the statute, J. D. Downs not being a female relation of Mrs. Eula Downs. The statement that appellant used “violently abusive language to J. D. Downs concerning him and his wife” is not jvithin the statute, because it fails to aver that the language was used in his presence or hearing.

For the reasons stated, the judgment is reversed and the prosecution ordered dismissed. 
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