The complaint was for a violation of s. 2, c. 264, P. S. which provides that, "No person shall address: any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business or occupation." An intent to deride, etc., was not alleged in the complaint. If such an allegation was necessary, its absence is not material here. Perjury might be committed at the trial, although the complaint would be held bad upon demurrer or motion in arrest of judgment. Reg. v. Meek, 9 C. P. 513; State v. Whittemore, 50 N.H. 245, 248. *Page 201
The fact that the forbidden words express the truth does not justify their use. The statute makes no distinction between truthful and untruthful expressions, but prohibits both alike. Its purpose was to preserve the public peace. The direct tendency of such conduct, like that of libel (4 Bl. Com. 150, 151), is to provoke the person against whom it is directed to acts of violence. The circumstance that the offensive language is true does not destroy or lessen the tendency, but, on the contrary, is liable to increase it by stimulating a spirit of revenge. Commonwealth v. Foley,99 Mass. 497; State v. Burnham, 9 N.H. 34, 41. H.'s testimony was irrelevant to the issue on trial, and consequently the defendant's testimony in rebuttal was immaterial.
Testimony affecting the credit of a witness is no doubt material, and so may be the subject of perjury. Rex v. Griepe, 1 Ld. Raym. 256, 258, — 2 Salk. 513; Reg. v. Overton, 1 Car. Mar. 655; Reg. v. Muscot, 10 Mod. 192, 195; Commonwealth v. Pollard, 12 Met. 225; People v. Courtney,94 N. Y. 490; State v. Norris, 9 N.H. 96, 99, 100. But the defendant's testimony was not received, and was not competent, for such purpose.
Indictment quashed.
All concurred.