City of Bismarck v. Travis

KNUDSON, Judge

(dissenting)

I dissent to that part of the opinion of the majority holding that the evidence was sufficient to support the verdict of conviction.

There is no evidence in the record to prove that the acts of the defendant, separately or in association with the driver of the car, were in violation of the ordinance under which the defendant was charged.

To find the defendant guilty of disorderly conduct under the ordinance it is necessary that the acts that disturb, interfere with, obstruct, or are offensive to others, be committed to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. It is quite probable that the acts of the defendant on the occasion mentioned did “annoy, disturb, interfere with, obstruct or be offensive to” the complainant. But guilt should not be made dependent upon the complainant’s reactions to defendant’s acts, but rather on the objective nature of the conduct and the reactions among persons of ordinary, normal temperament. See City of Bismarck v. Anderson, *924N.D., 71 N.W.2d 457; People v. Harvey, 307 N.Y. 588, 123 N.E.2d 81; 12 Am.Jur. 2d Breach of Peace § 38. Here there is no showing that anyone other than complainant was annoyed or disturbed. There is, in fact, testimony indicating that the other two girls were laughing. The conduct complained of as constituting the offense of disorderly conduct was that of preventing the plaintiff from making a left turn at several intersections and finally blocking the way, forcing her to stop, by the driver of the car in which the defendant was a passenger, and was that of the defendant then getting out of the automobile and standing by the complainant’s automobile.

Breach of the peace consists of acts that involve tumultuous or offensive conduct.

This offense [disturbance of the peace] occurs where a person maliciously and wilfully disturbs the peace or quiet of any neighborhood, family, or person by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or who applies any violent, abusive, or obscene epithets to another.
Platt v. Greenwood, 50 Ariz. 158, 69 P.2d 1032.

The instructions of the court in defining the term “breach of the peace” set out as one of the elements thereof that the act must be tumultuous or offensive. The court instructed the jury on the element of breach of the peace in the following manner:

Conduct is disorderly, in the ordinary sense, when it is of such a nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment thereby; the probable and natural consequences of the conduct is the important element.
In order to convict the defendant, the City must prove, beyond a reasonable doubt that a breach of the peace occurred as set out in the City Ordinance.
The term “breach of the peace” embraces an endless variety of acts and incidents, and anything that amounts to tumultuous and offensive conduct is a breach of the peace under the ordinance.

Disorderly conduct is a statutory offense ; it was not known at common law.

Disorderly conduct is made an offense only by statute or ordinance. At common law there was no offense known as “disorderly conduct” * * *. The term “disorderly conduct” is now commonly used, however, sometimes in statutes, but more often in municipal ordinances, to designate certain minor offenses, below the grade of misdemeanor, which are quasi-criminal in nature, but not strictly criminal. The offense has been held to be a summary proceeding, in derogation of the common law, and it may be punishable in a summary manner.
27 C.J.S. Disorderly Conduct § 1(1) (1959).

The State of New York has a statute very similar to the Bismarck ordinance. The pertinent part of the New York statute reads as follows :

Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
******
2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others.
******
N.Y. Penal Law, § 722 subd. 2 (McKinney’s Consol.Laws, c. 40, 1944).

This statute, word for word, is the same as the Bismarck ordinance except for the words in the first paragraph of the statute, “with intent to.” The first paragraph of the New York statute begins: “Any person who with intent to provoke a breach of *925the peace,” whereas the Bismarck ordinance begins : “Any person who provokes a breach of the peace.” Under the New York statute intent is an element of the offense of disorderly conduct, whereas under the Bismarck ordinance intent is not an element of the offense of disorderly conduct.

A willful or unlawful purpose is not an element of the offense of disorderly conduct unless made so by statute * *.
27 C.J.S. Disorderly Conduct § 1(3) (1959).

The New York courts in construing § 722, subd. 2, supra, have held that the act or conduct of the accused must at least have disturbed the peace, or might reasonably be expected to cause or provoke a breach of the peace, or corrupt public morals. People v. Perry, 265 N.Y. 362, 193 N.E. 175. A breach of the peace is an offense well known to the common law. The common law definition of breach of the peace, though not controlling, is helpful in construing the statute on disorderly conduct. 12 Am.Jur.2d, Breach of Peace, § 35, p. 687.

In People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L.R.A. 509, it was defined as a “disturbance of public order by any act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.” See People v. Carcel, 3 N.Y.2d 327, 165 N.Y.S.2d 113, 144 N.E.2d 81.

Since the decision in People v. Perry, supra, it has been settled in New York that acts charged as disorderly conduct must be public in character, and such as actually do tend to disturb the public peace and quiet. People v. Monnier, 280 N.Y. 77, 19 N.E.2d 789.

The Court of Appeals of New York, in People v. Chesnick, 302 N.Y. 58, 96 N.E.2d 87, discussed the phrase “breach of the peace” in the following manner:

The key phrase of the statute is “breach of the peace” and, traditionally, that language means a violation of public order and tranquility (see 5 Words. and Phrases, p. 763 et seq.; Black’s Law Dictionary [3rd ed.] p. 246; Restatement, Torts, § 116; Personal Property Law, § 76, Consol.Laws, c. 41). The classic definition, in modern times, of “breach of the peace” is given by People v. Most, 171 N.Y. 423, 429, 64 N.E. 175, 177, 58 L.R.A. 509: “It is a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.” “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility.” Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213, 128 A.L.R. 1352. And so, to constitute “disorderly conduct” there must be an actual or threatened “breach of the peace”, which, in turn, means a “disturbance of the tranquility of the people of the state”, People v. Perry, 265 N.Y. 362, 193 N.E. 175, 177. Here there was no troubling of the wonted calm of the whole community, or of any sizeable segment thereof.

The Bismarck ordinance provides that the acts in subdivision (b) provoke a breach of the peace, or whereby a breach of the peace may be occasioned. The offensive conduct must be such that a breach of the peace has become imminent or might reasonably be expected or intended to flow from such conduct. People v. Monnier, supra. A breach of the peace is a necessary element to the offense of disorderly conduct under the Bismarck ordinance.

Statutes providing punishment for disorderly conduct frequently include as an element of the offense the requirement that the act disturb or be likely to disturb the public peace. And in a jurisdiction where there is no statutory crime of breach of the peace, but where the statutory definition of disorderly conduct includes a breach of the peace element, *926it has been held that the common-law definition of breach of the peace, though not controlling, is helpful in construing the statute on disorderly conduct.
12 Am.Jur.2d Breach of the Peace and Disorderly Conduct, § 34 (1964)
The law is clear in New York that Section 722 of the Penal Law was designed to prohibit a disturbance of public order by an act of violence, or by an act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of a sizable segment of the community. People v. Perry, 265 N.Y. 362, 193 N.E. 175. It has been held that private annoyances, however exasperating or reprehensible, are insufficient in law to constitute a violation of the disorderly conduct section where no breach of the peace has resulted. People v. Broadbent, 20 Misc. 2d 547, 192 N.Y.S.2d 889.
Here, as in the Broadbent case, the complaining witness testified that the act of the defendant was annoying to him. He infers that the defendant’s act was offensive and annoying to others as required by the statute, but no other person testified.
Inasmuch as it is essential in a criminal case that each and every element constituting the crime be proven, it is obvious that the people have not substantiated their burden of proof. They have failed to prove beyond a reasonable doubt that the acts of the defendant were offensive to other persons.
People v. Coleman, 47 Misc.2d 355, 262 N.Y.S.2d 508,-509-510.
“However, it is clearly established by the highest Court of the State and the United States Courts that private or individual annoyances are not sufficient to constitute the offense of disorderly conduct. People v. Perry, 265 N.Y. 362, 193 N.E. 175; People v. McCauliff, 267 N.Y. 581, 196 N.E. 590; People v. Monnier, 280 N.Y. 77, 19 N.E.2d 789; * *
People on Inf. Hataling v. Dale, 47 N.Y.S.2d 702, 709, (Utica City Ct. 1944), quoting People v. Reid, 180 Misc. 289, 40 N.Y.S.2d 793.

There is no evidence in the record that the peace and quiet of the community was disturbed or that it might be disturbed by the conduct of the defendant or by the driver of the car. No evidence was adduced as to the kind of neighborhood in which the incident took place, or that there were other people nearby who were alarmed or disturbed or who may become alarmed or disturbed. The neighborhood may have been heavily populated or unpopulated, there may or may not have been people around. On this the record is silent.

The conduct of the defendant must be of such nature as to disturb the community or persons in the vicinity. City of Bismarck v. Anderson, supra.

As the Court of Appeals of the State of New York, quoted earlier in this opinion, said:

Here there was no troubling of the wonted calm of the whole community, or of any sizeable segment thereof.

I do not agree with the majority of the Court that all that was required under the Bismarck ordinance to constitute the offense of disorderly conduct was to show that “it is sufficient if the peace of only one person is disturbed.”

In the Minnesota case cited in the majority opinion, State v. Reynolds, 243 Minn. 196, 66 N.W.2d 886, the Minnesota Supreme Court had before it an entirely different statute than the Bismarck ordinance. There the Minnesota Supreme Court said, in Syllabus 7:

Where a statute does not require that the disorderly conduct or act be committed in a public place or a specified place, then it is sufficient if the act is *927committed within the confines of the jurisdiction of the court, and, dependent upon facts and circumstances, it may be enough if the peace of only one member of the public or of one person is disturbed.

Under the Bismarck ordinance, the acts charged as disorderly conduct must be public in character, and such as actually do tend to disturb the public peace and quiet. People v. Monnier, 280 N.Y. 77, 19 N.E.2d 789.

The acts of defendant in getting out of a car, walking over to another car, standing first on one side of the car and then on the other, making no gestures or attempts to enter the car, and without a showing that anyone other than the complainant was upset by his actions, are not sufficient to sustain the verdict.

The record discloses no loud or angry talk, no boisterous or profane language, no physical violence nor threat to commit violence; nor was there any act or incident that amounted to tumultuous or offensive conduct under the instructions of the court. The evidence does not warrant the jury in finding the defendant guilty of disorderly conduct within the meaning of the ordinance. It is therefore insufficient to support the verdict.

What we have said here should not be construed as an approval of the acts of this defendant. The defendant may have violated certain other provisions of the ordinances of the city of Bismarck, but he has not violated the ordinance under which this charge was brought. There can be no justification for the acts of the defendant. Nevertheless, and no matter how much we may dislike and condemn certain conduct, the ordinance must not be warped to fit the facts and no conviction can be had unless the facts fit the ordinance upon which the defendant was charged.

The judgment appealed from should be reversed and the trial court directed to dismiss the action.

TEIGEN, C. J., concurs in the dissent.