
    [No. 4008.]
    Brown McCandless v. The State.
    Disturbing the Peace.—Charge of the Court instructed the jury as follows: “When the natural and legitimate consequences of obscene or vulgar language, or of cursing or swearing, would be to disturb the inhabitants of a place, then you are instructed that, in law, it would be used in a manner calculated to disturb the inhabitants of such place.’’ Held, that the charge was error, because it was an invasion of the province of the jury. An exception having been promptly saved, the erroneous charge necessitates a reversal of the judgment.
    Appeal from the County Court of Bosque. Tried below before the Hon. R. G. Childress, County Judge.
    The conviction in this case was for disturbing the peace by loud talking, cursing and swearing, and the penalty imposed by the jury was a fine of five dollars.
    No brief for the appellant.
    
      J. H. Hurts, Assistant Attorney General, for the State.
   Willson, Judge.

In the charge of the court the following instruction occurs: “ When the natural and legitimate consequences of obscene or vulgar language, or of cursing or swearing, would be to disturb the inhabitants of a place, then you are instructed that in law it would be used in a manner calculated to disturb the inhabitants of such place.” This instruction the defendant promptly excepted to, and we are of the opinion that the exception is well taken.

It was a question of fact for the jury to determine, from the evidence, whether the language of the defendant was calculated to disturb the inhabitants of the place. There is no such rule of law that we are aware of as that expressed in the instruction quoted. It would be a proper deduction of fact for the jury to adopt if, in their judgment, the evidence warranted it. We think the instruction invaded the province of the jury. The jury should have been left untrammeled, to determine from the evidence, whether the language used by the defendant, and the manner of its use, were calculated to disturb the inhabitants of the public place where the same was used. (Lumbkin v. The State, 12 Texas Ct. App., 341.)

Opinion delivered June 2, 1886.

We find no other error in the conviction, but for this error in the charge, the judgment is reversed and the cause is remanded.

Reversed and remanded.  