
    TAYLOR v. STATE.
    (No. 3550.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.)
    1. Telegraphs and Telephones <®^79 — Obscene Language Over Telephone — Complaint and Information.
    In a prosecution under Pen. Code 1911, art. 471, for using obscene language over a telephone, a complaint and information sufficiently allege that the offense was committed before they were filed by the use of the word “heretofore.”
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. 79.]
    2. Telegraphs and Telephones cg^79 — Obscene Language Over Telephone — Complaint and Information.
    A complaint and information under Pen. Code 1911, art. 471, alleging the use of obscene language over a telephone belonging to the Southwestern Telegraph & Telephone Company, is sufficient without alleging that such company was a copartnership, corporation, joint-stock company, or individual firm.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <©=» 79.]
    3. Telegraphs and Telephones <@=»79 — Obscene Language Over Telephone — Complaint and Information.
    A complaint and information under Pen. Code 1911, art. 471, alleging that defendant used obscene language over a telephone describing it by number and giving the ownership thereof, is sufficient though not specifically alleging that it was in operation and capable of being actually used.
    [Ed. Note. — For other cases, see 'Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <§=> 79.]
    4. Indictment and Infobmation <@=>110 — Obscene Language Ovee Telephone — Complaint and Infoemation — Language of Statute.
    Under Pen. Code 1911, art. 471, making it a misdemeanor to use obscene, profane, etc., language over or through any telephone in the state, a complaint and information following the language of the statute is sufficient, though there is no allegation that the language was heard by any one or that it disturbed any one.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. <&=>110.]
    5. Telegbaphs and Telephones <@=379 — Obscene Language Ovee Telephone — Time of Offense — Evidence.
    Where a complaint and information under Pen. Code 1911, art. 471, alleged the use of obscene language over a telephone on the 16th day of March, the testimony of the sole witness for the state, on a trial had on the 24th day of March, that defendant used the language charged on the former’ date, did not show that the pí-fense was not committed before the complaint and information was filed.
    [Ed. Note. — Dor other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <@=> 79.]
    6. Telegeaphs and Telephones <@=>79 — Ob-, scene Language Ovee Telephone — Defenses.
    Under Pen. Code 1911, art. 471, making it a misdemeanor to use obscene language over a telephone, it is no defense that prosecuting witness could have disconnected the phone and thereby refused to listen to more than one single utterance by defendant.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <S=>79.]
    7. Ckiminal Law <@=>1090 — Appeal and Ee-boe — Exceptions in Lowee Couei>-Abgument of Counsel.
    Objection to argument of counsel cannot be reviewed in absence of exception to such language at the time and a bill of exceptions thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@=>1090.]
    8. Cbiminal Law <@=>721 — Aegument of Counsel — Refebence to Failube of Defendant to Testify.
    Statement of a prosecuting attorney that complaining witness “has testified to all these facts, which have not been denied,” is not a reference to the failure of accused to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. <@=721.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Mary Taylor was convicted, of using obscene language over a telephone, and she appeals.
    Affirmed.
    Peden & Lipscomb, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PBENDEKGAST, P. J.

Appellant was prosecuted, convicted, and fined $10 for using vulgar, profane, obscene, and indecent language over and through a telephone.

The statute is:

“If any person shall use any vulgar, profane, obscene or indecent language over or through any telephone in this state, he shall be guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than five dollars nor more than one hundred dollars.” Article 471, P. C.

The prosecution was by complaint and information. They both follow the statute. After the proper formal parts, the complaint and information each charge that:

Mary Taylor, the appellant, “heretofore, on the 16th day of March, A. D. 1915, in the county of Tarrant and state aforesaid, did then and there unlawfully and willfully use vulgar, profane, obscene, and indecent language over and through a telephone, to wit, Lamar 6733, same belonging to the Southwestern Telegraph & Telephone Company, of Ft. Worth, Tarrant county, Texas.”

Appellant made two motions, one to quash the complaint and the other the information, on many grounds. We state only such of them as she urges in her brief. Her first is that said pleadings were insufficient in that the offense is not alleged to have been committed before they were filed. The reverse of this is true. They each allege that “heretofore.” Wilson v. State, 15 Tex. App. 155; Williams v. State, 17 Tex. App. 524.

Second, she claims they were insufficient because they fail to allege that said telephone company was a copartnership, corporation, joint-stock company, or individual firm. This was not necessary in this case. Steiner v. State, 33 Tex. Cr. R. 293, 26 S. W. 214. This is not like where a party is charged with theft or embezzlement, and the theft or embezzlement is alleged to be the property of a company.

Third, she claims that said pleadings failed to allege that said telephone was in operation and capable of use at the time. No such allegation was necessary. The allegation that was made clearly showed that the telephone was in operation and not only capable of being, but actually, used by appellant and that she used over and through it vulgar, etc., language.

Fourth, she claims that said pleadings fail to allege that in the use of said telephone she used vulgar, etc., language which was heard by any one or more persons, or it disturbed or was calculated to disturb any one or more persons. This was unnecessary. The allegations in both pleadings followed the statute and were clearly sufficient.

Appellant next complains that the court erred in refusing to give his special charge, to the effect that the state, having wholly failed to prove that she used any vulgar, etc., language as charged, on said date, at any time prior to the filing of the complaint to acquit her. Only one witness, a woman, testified. She testified that on the evening of March 16, 1915, appellant called her up over the phone; that she knew her voice, having seen and talked with her before and having talked with her repeatedly over the phone before; and that she used to her, giving the language. It is too indecent, vulgar, and profane to here copy. There is nothing in appellant’s contention that the testimony of this witness' did not show that this offense was committed before the complaint and information were filed. The case was tried on March 24, 1915.

Appellant next complains that the court refused to give her charge No. 2 to the effect that the prosecuting witness to whom appellant used, over the phone, the vulgar, etc., language, had it in her power to prevent appellant from committing the offense, because she could have disengaged her telephone from that alleged to have been used by appellant and thereby refused to listen to more than one single utterance by appellant, and this entitled her to an acquittal. The mere statement of' such a proposition is all that is necessary to show that there is no merit whatever in it.

The only other complaint appellant has is she alleges in her motion for new' trial that the county attorney in his argument to the jury said that the complaining witness “has testified to all of these facts which have not been denied.” She did not except to any such language, if used, at the time, and has no bill of exceptions thereto. This question cannot be reviewed in the absence of a bill of exceptions to the language at the time used, and the refusal of the court to give a charge excluding it. Besides, this was no reference to the failure of the appellant to testify.

The judgment is affirmed. 
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