City of Bismarck v. Travis, 344

• Citation: 154 N.W.2d 918
• Decision Date: 02 November 1967
• Docket Number: No. 344,344
• Parties: CITY OF BISMARCK, Plaintiff and Respondent, v. Alvin TRAVIS, Defendant and Appellant. Crim.
• Court: United States State Supreme Court of North Dakota

Page 918

154 N.W.2d 918

CITY OF BISMARCK, Plaintiff and Respondent, v. Alvin TRAVIS, Defendant and Appellant.

Crim. No. 344.

Supreme Court of North Dakota.

Nov. 2, 1967.

Rehearing Denied Jan. 11, 1968.

Syllabus by the Court

1. A disorderly conduct ordinance which provides that any person who provokes a breach of the peace, or whose conduct is such that it may occasion a breach of the peace, does not require that such behavior occur in the presence of a large group of people. Under such ordinance, it is sufficient if the act complained of provokes a breach of the peace or might occasion a breach of the peace, or is such as to annoy, disturb, interfere with, obstruct, or be offensive to others. 'Others,' as here used in the ordinance, is held to mean anyone other than the person committing the act.

2. Where the defendant is charged with disorderly conduct under a city ordinance, and the court instructs the jury that, in order to convict, the City must prove beyond a reasonable doubt that a breach of the peace had occurred, and the jury returns a verdict of guilty, it will be presumed that the jury found that a breach of the peace had been provoked by the defendant's conduct.

Frederick E. Saefke, Jr., Bismarck, for plaintiff and respondent.

Rausch & Chapman, Bismarck, for defendant and appellant.

STRUTZ, Judge (on reassignment).

The defendant was charged with the offense of disorderly conduct under an ordinance of the City of Bismarck. He was convicted in police magistrate's court, and took an appeal from the judgment of conviction to the district court where he again was found guilty, by a jury, of the offense charged. The defendant thereupon appealed to this court from the judgment of conviction entered on the verdict and from an order denying his motion for a new trial.

The facts are not in serious dispute, but the defendant contends that such facts clearly show that he is not guilty. Those facts, briefly stated, are:

The complaining witness was employed as a telephone operator. On the evening of November 13, 1964, she had worked until 11 p.m., and after completing her day's duties she, with two girl friends, went to the place of her residence where she awaited an expected long-distance telephone call. The three of them then went to the Drumstick restaurant for a snack and then decided that they would take a short ride before calling it a day. With the complaining witness doing the driving, they drove down Main Avenue of Bismarck in an easterly direction. At Twenty-sixth Street, they made a left turn to the north, intending to make another left turn at the intersection of Twenty-sixth Street and Broadway Avenue in order to take one of the girls to her place of residence on Second Street. When the complaining witness attempted to turn left, or west, on Broadway Avenue, she was prevented from doing so by another automobile which had been driven alongside her car in the intersection and which thus prevented her from making the left turn. She thereupon continued driving north on Twenty-sixth Street to the next intersection, with Thayer Avenue, where she again attempted to turn left, or west. Again she was prevented from doing so by the same automobile. She then proceeded north on Twenty-sixth Street for still another block, to Rosser Avenue, where the same thing happened. The complaining witness then continued north for another block, to Avenue A, where she made a right turn in an easterly direction toward Twenty-seventh Street. After turning toward the east, the car which had been following her and preventing her from making the left turns toward Second Street passed her automobile and was then driven in such a way as to prevent her from making a left turn onto Twenty-seventh Street. This car then completely blocked her progress and she attempted to back up in order to get away from it. The offending car then was turned around so that its headlights shone on the complaining witness's automobile. She continued backing away and finally struck the curb, whereupon the other car completely blocked her path, making it impossible for her to move in any direction.

The defendant, who was not the operator of the other automobile, thereupon got out of the car and approached the complaining witness's automobile and stared into the window on the driver's side. The complaining witness contends that this greatly frightened her. The girls had rolled up the windows of their automobile and locked the doors. The radio was on so that it was impossible for them to hear what the defendant was saying.

After standing at the door on the driver's side of the automobile for some five minutes, according to the estimate of the complaining witness, the defendant went around to the right side of the car and knocked on that window. The girls paid no attention to him, however, and refused to open the door. After staying on the right side of the car for another estimated five minutes, the defendant returned to the car in which he had been riding, got into it, and the car then was driven away. The girls thereupon drove to the police station, where the complaining witness made her complaint against the defendant, who had been recognized by one of the girls in the car.

By the time the case came on for trial, the girls other than the complaining witness had left Bismarck. The driver of the car in which the defendant had been riding also had left the community, shortly after the above incident, and therefore he was not arrested.

The defendant testified that he had been requested by the driver of the car in which he was riding to tell the girls that the driver thought he knew one of them and that he wanted to talk to her. The defendant contended that he stood at the driver's side of the girl's car for a far shorter period of time than claimed by the complaining witness, and that, failing to get a response from her, he had moved over to the right side of the car and knocked on the window. When he got no response from the girls there, either, and when the girls continued to refuse to talk to him, the defendant returned to the automobile in which he had been riding and it was driven away. The defendant again contended that the time during which he had been on the right side of the complaining witness's automobile was far less than the five minutes which she estimated that he had spent there.

Some time after the jury had begun to deliberate, it sent a note to the trial judge asking if it could bring in a verdict of guilty with a recommendation for clemency, 'because no disturbance of the peace arose out of the incident as charged.' Following receipt of this note, the trial court advised the defendant and his attorney that it was the court's intention to have the jury return into court and inform it that the subject of punishment was not to be discussed or even considered by it, since that was a matter for the court to determine; that the sole question for the jury to consider was the guilt or innocence of the defendant. The defendant objected to this, contending that the contents of the jury's note indicated that the jurors did not understand the instructions which had been given to them.

The defendant's appeal to this court is based on the ground that no breach of the peace occurred, and therefore the defendant could not be found guilty of disorderly conduct. Defendant further contends that the jury's note clearly indicated that it misunderstood the law and that the note, stating that no disturbance of the peace arose out of the incident charged, constituted a finding on the part of the jury that there was no disturbance of the peace and thus the defendant could not be guilty of disorderly conduct. The defendant further contends that the jury should have been instructed by the trial court that if it found no disturbance of the peace, its verdict should be 'not guilty.'

The ordinance which the defendant is charged with having violated, insofar as it is applicable to this case, reads:

'10. Disorderly Conduct. Any person who provokes 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:

(b) Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others.' Sec. 22.0201, City of Bismarck Revised Ordinances of 1958.

The criminal complaint, insofar as it describes the offense, recites that,

'* * * on the 14th day of November, A.D.1964, at the City of Bismarck, in said County, the above named defendant did commit the offense of Disorderly Conduct within the limits of the said City of Bismarck, as follows, to-wit: That at the said time and place the said defendant did wilfully and unlawfully act in such a manner as to annoy, disturb, and interfere with another whereby a breach of the peace might have been occasioned contrary to the City Ordinances of the said City of Bismarck, * * *'

The defendant in his motion for a new trial alleges two specifications of error, as follows:

'1. The Court misdirected the jurors on a matter of law regarding a Note sent to the Court requesting further instructions and over the Defendant's exceptions and objections as shown in the record.

'2. The verdict is contrary to law and clearly against the evidence produced and against the jurors' own findings as clearly stated in the Note. The jury legally found the Defendant innocent but were so misled and misdirected by the court's instructions that they were thus prejudiced against the Defendant.'

We first will consider the specification of error contending that the court misdirected the jurors in its reply to the jury's request for further instructions. In the note sent to the trial court, the jury inquired whether it could bring in a verdict of guilty with a recommendation for clemency because no disturbance of the peace arose out of the incident. The court thereupon submitted to the attorney for the...