Where Done.

Public Nuisance.

in a sense importing an imprecation of future divine vengeance it is profane whether the name of the Deity be called or not. Foster v. State, 99 Ga. 56.

The use of the word " damn is profanity without being used in connection with the name of the Deity. State v. Wiley, (Miss. 1898) 24 So. Rep. 194.

1. Goree v. State, 71 Ala. 7. In the Presence of Others. If the indictment be in other respects good, it is not a fatal defect to omit the allegation that the words were uttered in the presence of divers citizens, the omission being supplied by other averments. Gaines v. State, 7 Lea (Tenn.) 410.

2. State v. Jones, 9 Ired. L. (N. Car.) 38; State v. Pepper, 68 N. Car. 259.

3. Goree v. State, 71 Ala. 7; Com. v. Linn, 158 Pa. St. 22.

Insufficient Averments. An averment that the swearing was done publicly is insufficient, for such may have been true if the act was done openly or without concealment, and in a proper place. Where the indictment charged that defendant, in the public streets of a town, "with force and arms, and to the great displeasure of Almighty God, and the common nuisance of all the good citizens of the state then and there being assembled, did, for a long time, to wit, for the space of twelve seconds, profanely curse and swear and take the name of Almighty God in vain, to the common nuisance as aforesaid," etc., it was held defective in this particular. State v. Pepper, 68 N. Car. 259.

4. State v. Graham, 3 Sneed (Tenn.) 134; State v. Ellar, 1 Dev. L. (N. Car.) 267; State v. Kirby, 1 Murph. (N. Car.) 254; State v. Waller, 3 Murph. (N. Car.) 229: State v. Powell, 70 N. Car. 67: Goree v. State, 71 Ala. 7.

could be heard at the distance of two or three hundred yards, and from dark until eleven o'clock at night, and that persons in the street and houses heard him, the court said that profane swearing in public might be so used as to be a nuisance, as, for instance, if it be loud and continued, but the fact must be so charged in the indictment. The probata cannot supply the want of the allegata. State v. Powell, 70 N. Car. 67.

And where the indictment charged that the defendants did, on the public streets and highways, profanely curse and swear and take the name of God in vain, to the evil example and to the common nuisance of good citizens, but did not aver the facts and circumstances necessary to make it a common nuisance, the court held that the manner and occasion of the utterance should be of the offensive and annoying character which is necessary to make it a public and common nuisance as distinguished from a mere private nuisance, and should be so charged. Com. v. Linn, 158 Pa. St. 22.

It is not sufficient to the conviction of the defendant that the state should show by its evidence that the defendant has been guilty of a nuisance; the indictment must charge it. It must set forth specially the whole fact with such certainty that the court may be able to see judicially that it rests on sufficient grounds. Nor will it be sufficient if the indictment charges that the acts were done to the common nuisance of all the good citizens of the state, unless the acts so charged in law amount to a nuisance. State v. Jones, 9 Ired. L. (N. Car.) 38.

Single Acts. Where the indictment alleges single acts of profane swearing it is not good, for it must be charged that the repetition of the acts has caused public annoyance. Goree v. State, 71 Ala. 7; State v. Pepper, 68 N.

Insufficient Averments. - Where it was proved that the defendant used profane language so loudly that he

Car. 259; State v. Waller, 3 Murph. (N. Car.) 229; Ex p. Delaney, 43 Cal. 478.

1. State v. Moser, 33 Ark. 140; Bodenhamer v. State, 60 Ark. 10; Taney v. State, 9 Ind. App. 46; Steuer v. State, 59 Wis. 472. But see Walton v. State, 64 Miss. 207; Hearn v. State, 34 Ark. 550; State . Hutson, 40 Ark. 361; Moore v. State, 50 Ark. 25. The indictment in the last named case alleged that the defendant unlawfully did make use of violent, abusive, and insulting language towards and about one A. W., and in his presence and hearing, which language was calculated to arouse to anger him the said A. W., and cause a breach of the peace. The court held that though, on principle, an indictment for this offense should set forth the language used by the defendant, in order that the court might be enabled at the outset to judge whether any offense had been committed, yet that the mention of the persons to whom the offensive language was addressed sufficiently individuates the offense for all practical purposes,

especially since the question whether the language was in its nature likely to provoke a breach of the peace must be left to the jury, depending as it does upon the manner of the speaker, the relation of the parties, and the circumstances under which it was spoken.

Omission of "Unlawfully." Where a statute, in describing the offense, does not use the word " unlawfully," and the act charged in the indictment appears to be unlawful, it is unnecessary to allege it to have been unlawfully done. State v. Murphy, 43 Ark. 178. Disturbance of Individual. Where a statute prohibits the use of profane language at or near the dwelling or premises of another and in the presence or hearing of the family of the occupant or any member thereof, a complaint charging a wilful disturbance merely of an individual by such language charges no offense. Brooks v. State, 67 Miss. 577.

2. Nor can two defendants be jointly charged in the same count for uttering the same words. State v. Lancaster, 36 Ark. 55.

Berry v. Pulliam, 1 Hayw. (N. Car.) 16; Roberts v. Arthur, 2 Salk. 497; Anonymous, 3 Salk. 119; Polk v. Mitchell, I Harr. (Del.) 433

Possession of Writing. - Where there is a profert, it must be remembered that the writing is in possession of the court and not of the party. Bac. Abr., tit. Pleas and Pleadings, (I) 12; Brown v. Jones, 10 Gill & J. (Md.) 335; Birckhead v. Saunders, 2 Har. & G. (Md.) 83; Rex v. Amery, 1 T. R. 149.

The Whole Doctrine of the Law upon the Subject of Proferts is based upon the theory that the court shall be able without the intervention of a jury to settle a question of law arising on the pleadings. Corlies v. Vannote, 16 N. J. L. 324, citing Master v. Miller, 4 T. R. 339. It is, however, insisted by some that profert is not made for this reason, but that it is a relic of one of the original rules of pleading, that every affirmative averment must be supported by an offer of some mode of proof. Stephen's Pleading (Andrews's ed.) 428, and Appendix.

1. See the statutes of the various jurisdictions and the following cases: Clary v. Thomas, 103 Mass. 44; Brown v. State, 44 Ind. 222; Kellogg v. Baker, 15 Abb. Pr. (N. Y. Super. Ct.) 287; People v. De La Guerra, 24 Cal. 73; Vannice v. Green, 14 Iowa 262.

Exhibits. As to the practice of attaching exhibits to pleadings, see article EXHIBITS, vol. 8, p. 736.

2. Chitty on Pleadings (16th Am. ed.) 378. See also Stephen's Pleading (Andrews's ed.), § 226.

(Tex.) 566; McMillan Marble Co. v. Black, 89 Tenn. 118 [citing Union Bank v. Osborne, 6 Humph. (Tenn.) 319; Lowry v. Medlin, 6 Humph. (Tenn.) 451; Walt v. Walsh, 10 Heisk. (Tenn.) 316]; Copewood v. Taylor, 7 Port. (Ala.) 33.

3. Thoresby v. Sparrow, I Wils. 16; Smith v. Woodward, East 585; Wellford v. Miller, I Cranch (C. C.) 514: Powers v. Ware. 2 Pick. (Mass.) 451; Wofford v. Board of Police, 44 Miss. 587; Birney v. Haim, 2 Litt. (Ky.) 262; Auditor v. Wooruff, 2 Ark. 73; Jones v. Simmons, 4 Humph. (Tenn.) 314; Mason v. Buckmaster, 1 Ill. 27; Carson v. Pearl, 4 J. J. Marsh. (Ky.) 92.

In Dugger v. Oglesby, 99 Ill. 405, the court said that "where a profert or an excuse for the want of it is necessary, if the plaintiff make profert of, and thereby profess to produce, the deed, when he is not prepared to do so, and the defendant pleads non est factum, the plaintiff will be nonsuited on the trial, as it will not be sufficient in such case to prove that the deed was lost or destroyed" and then furnish a copy. The plaintiff's course if he has inadvertently pleaded with a profert is to amend. Nothing, when profert has been made, can dispense with the production of the deed itself.

But it was held in New York that profert of a certified transcript of a recorded instrument was sufficient. Clark v. Nixon, 5 Hill (N. Y.) 36.

4. For it is a maxim in law that he who is party or privy in estate, or he who justifieth in the right of him who is party or privy, plead a deed, although he who is privy doth not claim but parcel of the original estate, yet he

An Objection to the Profert is too late when first presented in an appellate court. Holdeman v. Knight, Dall.