People v. Johnson

• Decision Date: 21 May 1891
• Citation: 86 Mich. 175,48 N.W. 870
• Court: Michigan Supreme Court
• Parties: PEOPLE v. JOHNSON.

48 N.W. 870

86 Mich. 175

PEOPLE v. JOHNSON.

Supreme Court of Michigan

May 21, 1891

Exceptions from circuit court, Mackinac county.

James J. Brown, for appellant.

A A. Ellis, Atty. Gen., and P. N. Packard, Pros. Atty., for the People.

CHAMPLIN, C.J.

Main street, in the village of Naubin way, Mackinac county, runs east and west. A street runs north from Main street, upon which is located the house of one Bruce. Between 9 and 10 o'clock of the 28th day of December, 1890, as the respondent, John Johnson, and one McAllister were walking along Main street, Johnson "shouted" or "whooped" in a loud voice twice. The shout was heard by Frank Murray, who was marshal of the village, and who was at the time standing upon the door-step of Mr Bruce's house. He started towards Main street, and proceeded down that street until he came to Johnson and McAllister, and asked, "Who done that hollering?" and McAllister replied that it was Johnson, and he then arrested him for it, and attempted to take him to the jail or lockup. Johnson resisted, and Murray used his club, and sent for Deputy-Sheriff Lull, whereupon they handcuffed Johnson and dragged him to the jail. It is not necessary in this action to describe or comment upon the conduct of Murray while taking his prisoner to the jail, and after they arrived there. The prosecuting attorney filed an information against Johnson "for resisting the officer, Frank Murray, while in the lawful execution of the duties of his office in attempting to arrest him, the said Johnson, for then and there being drunk, intoxicated, disorderly, and yelling, and disturbing the public peace, in the public streets of the village of Naubin way, in the presence of him, the said Frank Murray, he, the said Frank Murray, being then and there engaged in his lawful attempts to maintain, preserve, and keep the peace," etc. Upon trial Johnson was convicted. There was a conflict of testimony as to what occurred at the time of the arrest, but in the rulings here made we have taken the testimony of the people as that upon which the conviction must stand if it can be supported. By Murray's testimony he was over 150 feet away, and upon another street, when he heard the shout. There is no testimony showing that he was in sight of Johnson and McAllister, nor that he knew who it was who shouted, but based his arrest upon the statement of McAllister that it was Johnson. There was not any riot, noise, or disturbance when he reached them. No other persons are shown to have been upon Main street when Murray first accosted Johnson and McAllister. He had no warrant for the arrest of either Johnson or McAllister. Under the facts above stated two questions are raised: (1) Did Johnson, by the act of "shouting" or "whooping" in the public street of the village when on his way home, accompanied by McAllister, at the time of night stated, commit a breach of the peace? (2) If yes, was the offense committed in the presence of the officer, Murray?

We have had occasion to define the substance and nature of this offense in the following cases: Quinn v. Heisel, 40 Mich. 576; Way's Case, 41 Mich. 299; People v Bartz, 53 Mich. 495, 19 N.W. 161; Davis v Burgess, 54 Mich. 514, 20 N.W. 540; Robison v. Miner, 68 Mich. 549, 37 N.W. 21; Ware v. Circuit Judge, 75 Mich. 492, 42 N.W. 997. In general terms the offense is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace. Each case where the offense is charged must depend upon the time, place, and circumstances of the act. The circuit judge instructed the jury that "to be intoxicated and yelling on the public streets of a village in such a manner as to disturb the good order and tranquillity of that village would be an act of open violence, and would be a breach of the peace, which, if committed in the presence of an officer, would justify him in making the arrest." This was a correct statement of the law, and was applicable, under the testimony in this case. Hawley, Arrest, p. 38; Moseley v. State, (Tex.) 4 S.W. Rep. 907; State v. Lafferty, 5 Har. (Del.) 491; Bryan v. Bates, 15...