filed the following dissenting opinion, in which Brune, C. J., and Hammond, J., concurred.
I think both judgments should be reversed without a new trial. Maryland Rule 886 a.
I agree that the version of the facts as set forth in the ma*405jority opinion is substantially a true narration of the events leading to appellant’s arrest, trial and conviction for disorderly conduct and assault upon an officer. I further agree that the case turns upon the legality of the arrest for disorderly conduct, but it seems to me that the majority opinion misses the salient point in the case. Appellant was not arrested and tried under Code (1957), Article 66½, §§ 97 and 338. He was arrested for disorderly conduct under Article 27, § 123, and the gist of the crime of disorderly conduct has been stated by this Court to be “* * * the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area.” Drews v. State, 224 Md. 186, 192, 167 A. 2d 341.
A careful examination of the testimony convinces me that the evidence was insufficient to support a finding that the appellant was guilty of disorderly conduct. Rule 886 a, supra. No doubt, a scuffle arose between the appellant and the arresting officer. The question is whether, prior to the scuffle, words or actions of appellant were sufficient to justify his being placed under arrest for disorderly conduct Accepting the officer’s testimony as true, there was no evidence that appellant’s alleged vile language was such as to offend, disturb, incite, or tend to incite a number of people gathered in the same area. There was no evidence that anyone, except Officer McGuire, and possibly Officer Block, heard what appellant said in the presence of Officer McGuire. Cf. Heinze v. Murphy, 180 Md. 423, 428, 24 A. 2d 917. I point out that the profanity used by the appellant did not involve a characterization of the officer or calling him a vile name.
The majority opinion seems to read into Section 123 of Article 27 something that is simply not there. If this section should be amended to include using profane language in the presence of an officer, or failing to comply with a proper demand of a traffic officer (Code (1957), Article 66½, § 97), this is a matter for consideration by the Legislature and does not justify judicial legislation to amend the statute with reference to disorderly conduct.
The cases from other jurisdictions cited in the majority opinion are all distinguishable, either on their facts or due to a *406specific statute in each of those jurisdictions not comparable to the Maryland statute dealing with disorderly conduct. In all of those cases, the profanity or vile remarks consisted of derogatory characterizations of the police officers involved. As stated above, this element was not present in the instant case. In City of St. Paul v. Morris, 104 N. W. 2d 902, 911, there was a vigorous dissent by Justice Loevinger of the Supreme Court of Minnesota, in which he stated, inter alia:
“The very violence of feeling aroused by an offensive expression should warn judges of the dangers of being injudicious and of the impropriety of determining legal significance by their own reactions or feelings. The mere fact that acts or words are offensive does not mean that they are ‘disorderly’ or within that special category of disorderly described as noise, riot, disturbance, or diversion.”
I do not see how there could have been disorderly conduct prior to the arrest in this case, particularly in the absence of testimony of any persons other than the officers being affected by the language.
Since, as I see it, the arrest was illegal, appellant was justified in using any reasonable means, even force, to effect his escape. Williams v. State, 204 Md. 55, 64, 102 A. 2d 714; Sugarman v. State, 173 Md. 52, 57, 195 Atl. 324. I am of the opinion that appellant was not guilty of assault under the circumstances in using reasonable means to resist an unlawful arrest.
In spite of the provisions of Code (1962 Cum. Supp.), Article 5, § 12A, cited by the majority, that technically only the assault case is before us, I consider that the disorderly conduct charge and the assault charge are so intertwined that a consideration of the latter, without a consideration of the former, would be untenable and a denial of justice to the appellant. The disorderly conduct charge could have been brought before this Court by appropriate action under Code (1957), Art. 5, Sec. 21, and this case was treated by both sides as properly before us and we called for a reargument on the .question of what constituted disorderly conduct. We think that this Court should have done what it did in Moulden v. State, 217 Md. 351, 142 *407A. 2d 595, and should have treated the appeal as a petition for a writ of certiorari and should have granted the application and determined this case on the merits.
Chief Judge Bruñe and Judge Hammond authorize me to say that they concur with the views here expressed.