City of De Soto v. Hunter

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

122 S.W. 1092

145 Mo.App. 430

CITY OF DE SOTO, Appellant, v. CARLYLE HUNTER, Respondent

Court of Appeals of Missouri, St. Louis

November 16, 1909

Appeal from Jefferson Circuit Court.--Hon. Joseph J. Williams Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

J. G Berkeley for appellant.

(1) The court erred in overruling plaintiff's motion to dismiss defendant's appeal, the action being a civil action. Billings v. Brown, 106 Mo.App. 243; DeSoto v Brown, 44 Mo.App. 148; State v. Witzel, 130 Mo. 600; Stevens v. Kansas City, 140 Mo. 460. (2) The court erred in giving the jury a peremptory instruction to acquit the defendant. State v. Foger, 29 Mo. 416; State v. Parker, 39 Mo.App. 116; State v. Rumsey, 52 Mo.App. 668. (3) The complaint is sufficient. It describes the offense in the language of the section of the ordinance relating to peace disturbances. The gist of the offense is a disturbance of the peace. A complaint of this kind is not to be scanned so closely as if the proceedings were of a strictly criminal nature. Billings v. Brown, 106 Mo.App. 343; DeSoto v. Brown, 44 Mo.App. 142; State v. Witzel, 130 Mo. 600; Stevens v. Kansas City, 146 Mo. 460; State v. Rumsey, 52 Mo.App. 668; State v. Foger, 29 Mo. 416; State v. Parker, 39 Mo.App. 116. (4) The prosecution by a city for the violation of its ordinances is a civil action and the sufficiency of the complaint must be determined by the same rules that govern civil actions. City of St. Louis v. Schoenbush, 95 Mo. 618; City of St. Louis v. Vert, 84 Mo. 204; Kansas City v. Clark, 68 Mo. 588; Kansas City v. Muhlbach, 68 Mo. 638; City of Marshall v. Standard, 24 Mo.App. 192; Billings v. Brown, 106 Mo.App. 243; Ex parte Hallwell, 74 Mo. 395; City of St. Louis v. Knox, 74 Mo. 79; State v. Witzel, 130 Mo. 600; Stevens v. Kansas City, 146 Mo. 460. (5) The scope of the section 432 of Ordinance 244 is broad enough to apply to the offense proven. 1 Dillon's Municipal Corporations (4 Ed.), sec. 407, p. 475; Delaney, 43 Cal. 478 (1872); St. Charles v. Meyer, 58 Mo. 86. (6) A police officer's peace can be disturbed.

H. B. Irwin for respondent.

(1) A peace officer's personality is merged in his official character, and a city marshal's peace cannot be disturbed by loud and offensive language. Salem v. Coffey, 113 Mo.App. 675. (2) The complaint is insufficient and states no cause of action. State v. Hauck, 109 Mo. 658; State v. Reike, 62 Mo. 42; State v. Sides, 64 Mo. 383; Sherwood's Com. on Crim. Law, 649; 1 Bishop, Crim. Prac. , secs. 81, 86, 88, 519, 566; Sherwood's Com., 646.

NORTONI, J. Goode, J., concurs. Reynolds, P. J., concurs in result in separate opinion.

OPINION

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, wilfully 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 wilfully 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 DeSoto 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 those 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 in support of the judgment is that the police officer who testified his peace was disturbed was not within the protection of the ordinance. To quote from the defendant's brief, it is said that "the police officer was acting within the scope of his official duties and as such an official was not a person within the meaning of the ordinance. His personality was merged into that of his office as marshal."

Indeed, the case of Salem v. Coffey, 113 Mo.App. 675, 88 S.W. 772, is cited in support of the doctrine referred to. That case was decided by the Kansas City Court of Appeals, Judge ELLISON dissenting, a majority of the court holding that the peace of a police officer is not protected by the statute or an ordinance as the one now in judgment. According to the reasoning of that case, it is no offense for a citizen to call a police officer a G-d d-d s-n of a b-- and otherwise abuse and vilify him. We are not persuaded thereby, but, on the contrary, believe that a police officer is within the protection of the statutes as are other citizens of the State or city. We believe loud, offensive and indecent language and epithets directed toward a policeman in the presence of others on the public street of a city or town sufficient to inspire fear or terror and arouse the passions or destroy the equanimity and repose of the mind of the person abused will amount to a disturbance of the peace of that person, and evidence tending to prove such facts is certainly sufficient to make a prima-facie case for the jury touching that question. Be this as it may, we are not persuaded that the mere fact that all of the witnesses, other than the police officer, said their peace was not disturbed was sufficient to authorize the court to direct a verdict for the defendant on the evidence to be found in this record.

In the city of St. Charles v. Meyer, 58 Mo. 86, the defendant was charged with having disturbed the peace and the Supreme Court held that it was competent to introduce evidence on the part of the defendant to show that the...