City of De Soto v. Hunter

• Decision Date: 16 November 1909
• Citation: 145 Mo. App. 430,122 S.W. 1092
• Parties: CITY OF DE SOTO v. HUNTER.
• Court: Missouri Court of Appeals

122 S.W. 1092

145 Mo. App. 430

CITY OF DE SOTO v. HUNTER.

St. Louis Court of Appeals. Missouri.

November 16, 1909.

Concurring Opinion November 30, 1909.

1. BREACH OF THE PEACE (§ 1) — VIOLATION OF ORDINANCE — NATURE OF OFFENSE.

An ordinance making it an offense to "willfully disturb the peace of any person" is violated by disturbing the peace of a policeman by the use of loud, offensive, and indecent language toward him, in the presence of others, on a public street, sufficient to inspire fear or terror, and arouse the passions, or destroy repose of mind.

2. BREACH OF THE PEACE (§ 10) — VIOLATION OF ORDINANCE — QUESTIONS FOR THE JURY.

In a prosecution for violation of an ordinance, making it an offense to "willfully disturb the peace of any person," whether the peace of any person was disturbed is a question for the jury, and testimony of witnesses that accused used, in their presence, language which was loud, offensive, and indecent, but that their peace of mind was not disturbed thereby, does not warrant the court in directing a verdict for accused.

3. BREACH OF THE PEACE (§ 10) — VIOLATION OF ORDINANCE — SUFFICIENCY OF EVIDENCE.

Evidence in a prosecution for breach of the peace in violation of a municipal ordinance held sufficient to take the case to the jury.

Appeal from Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Carlyle Hunter was prosecuted for disturbing the peace under a city ordinance. The court directed a verdict of acquittal, and the city appeals. Reversed and remanded.

James G. Berkley, for appellant. Byrns & Bean, for respondent.

NORTONI, J.

This is a prosecution for a disturbance of the peace under a city ordinance. At the conclusion of the testimony on the part of the city, the court peremptorily directed a verdict of acquittal, and the city prosecutes the appeal. The material portion of the ordinance in evidence, a violation of which is alleged against the defendant, is as follows: "Whoever shall, in this city, willfully disturb the peace of any person or persons by violent, offensive, tumultuous or obstreperous conduct or carriage, or by loud or unusual noises, or shall use toward another any indecent, profane, obscene or offensive language calculated to provoke a breach of the peace, * * * so that others are disturbed thereby, shall be deemed guilty of a misdemeanor," etc. The complaint lodged against the defendant, and on which he was tried in due form, charged that the defendant did, first, unlawfully and wrongfully and willfully disturb the peace of Robert Lanham, Eddie Eichelberger, Willie Burrus, Raymond Eichelberger, and the public generally by loud and unusual noises, by violent, tumultuous and obstreperous conduct and carriage; and, second, by using to and toward others, whose names are to the affiant unknown, profane, offensive, and obscene language calculated to provoke a breach of the peace, etc. The testimony introduced on the part of the city to sustain the charges referred to is to the effect that the defendant was scuffling with some other boys on a public street and principal thoroughfare of the city of De Soto, and for some reason commenced talking loud and profane. The police officer, Robert Lanham, testified that he heard him more than a block away. Other witnesses gave testimony to the effect that they heard his profanity across the street. Some testimony goes to show that the defendant was cursing the Eichelberger boy with whom he had been scuffling, and other testimony goes to show that he was cursing some person spoken of in the testimony as an umbrella man. However, the umbrella man was not identified, nor was he a witness in the case. We gather from the testimony that he was possibly a traveling vendor or mender of these articles. The police officer, Lanham, upon hearing the profane discourse a block away, was attracted thereto, and came towards the defendant. Of the defendant's conduct and touching what he said, the police officer testified as follows: "He called me a G____d d____d s____n of a b____, and a G____d d____d b____, and was talking all kinds of names like that up there before I went up there. Q. When you got there what kind of language was he using? A. The first I heard was he was calling somebody a s____n of a b____." The police officer further testified that he heard the defendant using vile language towards the umbrella man referred to; the question and answer touching the matter being as follows: "Q. You heard him using this vile language while he was talking to this umbrella man? A. Yes, sir." The police officer was asked if the defendant's conduct and vile language disturbed his peace, and he answered that it did. While all of the evidence on the part of the city tended to prove that the defendant cursed and swore for a considerable period of time on the public street, some of it is to the effect that he was not cursing anybody particularly. One witness said: "I don't suppose he was cursing anybody particularly unless it was the Eichelberger boy. They had been scuffling." The question was directed by the court to all of the witnesses as to whether or not the defendant's cursing and swearing disturbed their peace. Each witness, other than the police officer, answered in the negative, saying that his peace was not disturbed thereby. The police officer, however, said that his peace was disturbed.

From the arguments appearing in the briefs we gather that the court directed a verdict for the defendant on the theory that as all of the witnesses for the city, other than the police officer, said their peace was not disturbed by the defendant's conduct, the city failed to make out a case. The argument advanced...