
    DARNELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.
    On Rehearing, Dec. 17, 1913.)
    1. Bail (§ 68) — Appeal Bond.
    Under Code Cr. Proc. 1911, art. 919, fixing the form of recognizance in cases of appeal from convictions of misdemeanor, which concludes, “In order to abide the judgment of the Court of Criminal Appeals of the state of Texas in this case,” a recognizance omitting the three words “in this case” is insufficient to confer jurisdiction on the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 286; Dec. Dig. § 68.]
    On Rehearing.
    2. TELEGRAPHS AND TELEPHONES (§ 79) — OE-penses — “Indecent” — “Vulgar” — “Obscene.”
    The use of the expression “son of a bitch” in a conversation over the telephone falls within the provision of Pen. Code 1911, art. 471, making the use of vulgar, profane, obscene, or indecent language over or through a telephone a misdemeanor, the term “indecent” meaning unfit to be heard, offensive to modesty and delicacy,” the term “vulgar” signifying “lack of -cultivation or refinement,” while the term “obscene” means “offensive to chastity or modesty,” for the expression used is not merely rude and uncouth.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. § 79.
    
    For other definitions, see Words and Phrases, vol. 4, p. 3537; vol. 8, pp. 7364, 7831; vol. 6, pp. 4887-4889; vol. 8, p. 7735.]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    R. H. Darnell was convicted of using vulgar, obscene, profane, and indecent language over and through a telephone, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter cases see same topic anfl section NUMBER in Dec. Dig. & Am. Dig, Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted under an indictment charging that he unlawfully used vulgar, obscene, i>rofane, and indecent language over and through a telephone.

The Assistant Attorney General makes the point that this court has no jurisdiction because the recognizance is not in compliance with the statute in that it leaves off the three words “in this case” in the form prescribed by the statute (article 919, C. C. P.). In the opinion of the writer this should not have been held a fatal defect in- the recognizance. However, this court has in so many cases held this defect fatal and dismissed the cases because thereof that the court is not now willing to overrule all these cases. We cite some of them. Cryer v. State, 36 Tex. Cr. R. 621, 37 S. W. 753, 38 S. W. 203; Brock v. State, 72 S. W. 599; Page v. State, 72 S. W. 1134; Bradley v. State, 72 S. W. 1133,; Mason v. State, 74 S. W. 25; Heinen v. State, 74 S. W. 776; Mallard v. State, 83 S. W., 1115; Armstrong v. State, 77 S. W. 446; Fortenberry v. State, 72 S. W. 586; Fortenberry v. State, 44 Tex. Cr. R. 535, 72 S. W. 588; Adams v. State, 44 Tex. Cr. R. 535, 72 S. W. 588.

Under the circumstances this court has no jurisdiction of this appeal, and the case is therefore dismissed.

On Rehearing.

Since this case was dismissed for an insufficient recognizance, appellant has-had it corrected and now brings the proper evidence of a sufficient recognizance entered into in the lower court. His motion to set aside the former dismissal of this ease and now decide the case on the merits is therefore granted.

The statute under which appellant was convicted was passed in 1909 and is now article 471, P. C., as follows: “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.” The lowest penalty was assessed against appellant.

The uncontr'adicted proof introduced by both sides shows that on April 30, 1913, appellant, who was a subscriber of the telephone company, called up, on a party line, Mr. Dinsmore and discussed with him over and through the phone the insufficient service the phone company was giving to its subscribers, and said: “I think I know what-the trouble is, but I don’t know where it is from. Like the fellow that went into the saloon and shot it up and shouted, T am son of a bitch from Texas;’ and the saloon man replied, T knew you were but did not know'where you were from.’ ” At least two others on this party line heard this conversation at the time. One of the witnesses at least says appellant used the words “son of a bitch” twice.

It is well known that the telephone' exchanges in this state are in charge of and operated by young ladies almost exclusively. It was evidently the intention of the Legislature to protect these young ladies, as well as the patrons of the telephone companies, when in use by any person, from hearing any vulgar, profane, obscene, or indecent language used over it, and that the proper way to prevent this was to make it an .offense and ■ punish the person who used any such language. It makes no difference whether such person at the time is using it in anger or otherwise, or uses such language to and of the person to whom he is talking.

The language- used was not profane, but it was certainly indecent, vulgar, and obscene. The lexicographers define “indecent” substantially as: “Not decent; unfit to be heard; offensive to modesty and delicacy.” ■ “Vulgar.” as: “Lacking cultivation or refine- : ment; offensive to good taste or refined feelings; low; coarse.” “Obscene” as: “Offensive to chastity or modesty; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed; offensive to the senses; repulsive; disgusting; foul; filthy; offensive to modesty and decency.”

Appellant contends that the word “son of a bitch” used by appellant, taken separately or as a collective phrase, is neither profane, Indecent, vulgar, nor obscene, and that the language of appellant at most is only rude and uncouth and not comprehended by the statute.

The court expressly charged the jury that they could not convict appellant unless they believed from the evidence, beyond a reasonable doubt, that such word constituted either vulgar, profane, obscene, or indecent language. We think appellant’s contention cannot and should not be maintained, but that the jury found correctly. We have no doubt but that in contemplation of this law the language used was vulgar, obscene, and indecent.

There is no other question raised in such a way that we can review it. The judgment is affirmed.  