ANGELINA SPILLER, Appellant, v. JANE ROBERTS, Appellee.

ARGUED DECEMBER 13, 1915. DECIDED JANUARY 10, 1916.

Dossen, C. J., and Johnson, J.

1. It is the privilege of a defendant, in a criminal case tried by a justice of the peace or city magistrate, to appeal from the judgment of said court; and if upon the appeal, the appellate court should hold that the charge was not proven, the responsibility for the costs incurred in both the original and appellate courts will devolve upon the complainant in the original court, notwithstanding the fact that at the original trial, judgment had been given against the defendant.

2. An act to constitute an infraction of the peace must fall within the definition of such offense as is stated in section 56 of the Code.

Mr. Chief Justice Dossen delivered the opinion of the court:

Infraction of the Peace—Appeal from Judgment. This case comes up upon an appeal from the Circuit Court, Montserrado County.

The case originated in the City Court of Monrovia and was brought against appellee, defendant below, upon the complaint of appellant, who charged appellee with committing infraction of the peace, by abusing her. The City Court sustained the charge and gave judgment against appellee, defendant in the City Court; from which judgment defendant appealed to the Circuit Court aforesaid, which court reversed said judgment and ruled the prosecutrix in the original court, now appellant, to costs. From this judgment appellant took out an appeal to this court.

At the last term of this court a motion to dismiss the appeal was entered by appellee’s counsel, before the case was reached on the trial docket; which motion was denied and the case ruled to continue upon the trial docket.

The chief point now involved is the question of costs which the lower court ruled appellant should pay.

It is contended on behalf of appellant that she having proven her complaint in the original court and judgment having been given in favor of the city corporation, it was not within the province of the Circuit Court to have ruled her to costs even supposing the judgment of the City Court was not sustained.

We cannot agree with this contention. The judgment of the City Court was not conclusive. It was the privilege of appellee, defendant below, to appeal therefrom, as indeed she did, and. if upon the appeal the appellate court should hold that the charge was not proven, the responsibility for the costs incurred in both the original and appellate courts would devolve upon the complainant in the original court, notwithstanding the fact that at the original trial judgment had been given against the defendant now appellee.

We think the logical construction to be placed upon section 37 of the Code of Justices of the Peace, relative to the responsibility of the complainant for costs when the complaint is not sustained, is that his responsibility for costs does not terminate with the judgment of the original court, unless the defendant against whom such judgment is given submits to such judgment. But where, as in this case, the judgment of the original court is appealed from, the original complainant will still be answerable for costs in case the appellate court fail to uphold the judgment of such original court.

Turning to the evidence in the case, we must agree with the conclusion of the lower court that the charge was not proven. It does not appear to our satisfaction either that the language used by the appellee was obscene and abusive, or, that she committed an infraction of the peace in any other manner.

The language of the Code above cited is conclusive.

An act to constitute an infraction of the peace must fall within the definition of such offense as is stated in section 56 of the Code.

The whole evidence shows that no infraction of the peace was committed. There was present during the whole time a policeman of the city, who, we must presume, would have made arrest had appellee disturbed the public peace. We decline to lay down the rule that every altercation between persons in the public street is a disturbance of the public peace and the subject for public prosecution, or, that the words “lackey” and “keep-miss” is language which can be construed into obscenity or abusive within the meaning of the Code.

Obscenity implies moral impurity; that which is offensive to chastity or purity of mind. We fail to see how such a definition can be applied to the words proven to have been spoken against appellant.

We can perceive no legal ground why the judgment of the lower court should be disturbed ; on the contrary we think it is well founded and should be affirmed and it is so ordered.

A. Karnga, for appellant.

L. A. Grimes, for appellee.