Opinion
No. 3083.
Decided January 11, 1905.
Breach of Peace — Information.
Where the information charged "in a manner," instead of "under the circumstances" reasonably calculated to provoke a breach of the peace, it was sufficient.
Appeal from the County Court of Tarrant. Tried below before Hon. R.F. Milam.
Appeal from a conviction of a breach of the peace; penalty, a fine of $5.
The opinion states the case.
McLean Scott, for appellant.
Howard Martin, Assistant Attorney-General, for the State.
Appellant was convicted under article 599, Penal Code, and his punishment assessed at a fine of $5; hence this appeal. There is no bill of exceptions nor statement of facts in the record. The only question presented is, does the information sufficiently charge an offense. It alleges that appellant "did then and there unlawfully, in the presence and hearing of R.F. Daugherty, curse and swear, and abuse said Daugherty in a manner reasonably calculated to provoke a breach of the peace." The language of the statute is, "under circumstances reasonably calculated," etc., instead of "in a manner." The contention is that "in a manner" is not equivalent to the statutory requirement. While we do not believe it is equivalent, that is, the terms are not exactly synonymous, still, "in a manner calculated to provoke a breach of the peace," is tantamount to the allegation of "under circumstances," and in our opinion is the statement or allegation of the circumstance which the State would be required to prove, and could prove no other circumstance than the one in which the abusive language was used; that is, the State would be confined to that allegation. In our opinion the information is sufficient. There being no error in the record, the judgment is affirmed.
Affirmed.
[Motion for rehearing overruled without written opinion. — Reporter.]