The indictment- in this case charges, “that, before the finding of this indictment, Joe Goree [the appellant) did indulge publicly in profane swearing by using such expressions as, to-wit [here setting out ■ certain profane language], or words of like import, to the evil example of all *9■others in like case offending, and against the peace and dignity of the State of Alabama.” The (defendant was convicted of the offense charged, and being fined in the sum of twenty-five dollars, was duly sentenced in accordance with the verdict of the jury.
It is too well settled, for either disputation or discussion, that public profane swearing, as well as blasphemy, was an indictable offense at the common law, owing, no doubt, as well to the fact of its tendency to disturb the peace and corrupt the morals of the community, as to undermine the foundations of Christianity, which is justly regarded, in a certain sense, as a part of the common law of the land. — 1 Bish. Cr. LawN § 498 ; 3 Wharf. Amer. Cr. Law, §§ 2536-31; State v. Graham, 3 Sneed (Tenn.), 134; State v. Ellar, 1 Dev. (N. C.), 267.
The sounder view, however, seems to be that a single utterance of a profane word is not per se indictable, if it be not spoken, at least, with a loud voice, nor with repetitions. To be indictable, it is requisite that profanity should take such form, and be uttered under such circumstances as to-constitute a public nuisance. — 2 Bish. Cr. Law, § 79; State v. Waller, 3 Murphy (N. C.), 229; State v. Jones, 9 Ired. (N. C.), 38.
The present indictment is fatally defective in its allegations. It fails to charge that the act was done in the presence or hearing of any one. .The averment that it was done “ publicly ” is insufficient, for such may have been true if the act was done openly, or without concealment, and in a public place. 1'n the case of The State v. Pepper, 68 N. c. 259, an indictment for profane swearing was held defective, in this particular, although it charged the act as having been done in the public streets of a town. According to the best approved precedents, the language is usually charged as having been uttered “ in the presence arid hea/ring of divers” persons, citizens or subjects, as the case may be.—2 Bish. Cr. Proc. § 123; 2 Wharf. Precedents, 962-967; State v. Appling, 25 Mo. 315.
Nor is this defect obviated by the provisions of our statutes in reference to the contents of indictments. — Code, §§ 4785, 4793. The offense charged is not a statutory but a common law crime. There is no prescribed form for it in the Code, and the principle obtains in such cases, that the indictment must aver every material constituent of the offense charged, time and venue alone being excepted. — Smith v. State, 63 Ala. 55; Woles v. State, 24 Ala. 672.
It certainly is not required for the completeness of an offense of this nature, that the language used, as insisted by appellant’s counsel, should have been heard by a large portion of the people in the community.”- The court very properly ruled *10that if three or four persons were present and heard the words uttered, this would be sufficient.
The judgment of the Circuit Court is, for the above reason, reversed, and the cause is remanded. And, in the meanwhile, the defendant will be retained in custody until discharged by due course of law.