City of St. Louis v. Slupsky

• Decision Date: 03 January 1913
• Citation: 162 S.W. 155,254 Mo. 309
• Parties: CITY OF ST. LOUIS v. SLUPSKY.
• Court: Missouri Supreme Court

162 S.W. 155

254 Mo. 309

CITY OF ST. LOUIS v. SLUPSKY.

Supreme Court of Missouri, Division No. 1.

January 3, 1913.

1. MUNICIPAL CORPORATIONS (§ 596) — ORDINANCES — VALIDITY.

An ordinance of a city, which makes any person who disturbs the peace of others by violent, tumultuous, and offensive conduct, or by unusual noises or profane or obscene language, calculated to provoke a breach of the peace, guilty of a misdemeanor, is a valid exercise of the power conferred by the charter, authorizing ordinances not inconsistent with the charter, or the laws of the state as may be expedient in maintaining the peace, good government, and welfare of the city, and is applicable to acts done on the premises of the wrongdoer as well as to acts done on the premises of another or in a public place.

2. MUNICIPAL CORPORATIONS (§ 641) — ORDINANCES — PROSECUTION — EVIDENCE — INSTRUCTIONS — "BREACH OF THE PEACE."

Under a prosecution for a violation of an ordinance making a person disturbing the peace of others by violent conduct or by profane or offensive language, calculated to provoke a breach of the peace, guilty of a misdemeanor, an instruction, authorizing a conviction if defendant used indecent and offensive language in the presence of third persons, thereby disturbing their peace, ignored the requirement of the ordinance that the language must have been calculated to provoke a "breach of the peace," which is a generic term and includes all violations of public peace or order and acts tending to a disturbance thereof.

Appeal from St. Louis Court of Criminal Correction; Benjamin J. Klene, Judge.

Abraham Slupsky was convicted of violating an ordinance of the City of St. Louis, and he appeals. Reversed and remanded.

This proceeding was begun in the First district police court of the city of St. Louis, upon the following report of the chief of police: "To the Police Justice of the First District Police Court of the City of St. Louis, Missouri, June 29th, 1909. State of Missouri, City of St. Louis — ss.: City of St. Louis, June 28th, A. D. 1909. Abraham Slupsky, to the City of St. Louis, Dr. To five hundred dollars for the violation of an ordinance of said city entitled an ordinance in revision of the general ordinance of the city of St. Louis, being ordinance No. 22,903, section 1537, approved March 19th, 1907. In this, to wit: In the city of St. Louis and state of Missouri, on or about the 28th day of June, 1909, the said Abraham Slupsky did then and there willfully disturb the peace of others, and particularly of Lawrence L. and Marius D. Prince, by violent, tumultuous, offensive and obstreperous conduct and carriage, and by loud and unusual noises, and by unseemingly profane, obscene and offensive language, calculated to provoke a breach of the peace, and by assaulting, striking and fighting others, and particularly Lawrence L. and Marius D. Prince, contrary to the peace and dignity of the city and the ordinance in such cases made and provided. Contrary to the ordinance in such cases made and provided. E. P. Creecy, Chief of Police of the City of St. Louis."

The ordinance is as follows: "Sec. 1537. Disturbances of the peace, assault, etc. — penalty. — Any person who, in this city, shall disturb the peace of others by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another; or any person who, in this city, shall permit any such conduct in or upon any house or premises owned or possessed by them (him), or under (his) their management or control, so that others in the vicinity are disturbed thereby, shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than five nor more than five hundred dollars."

Appellant took a change of venue from the First district police court to the police court south of Arsenal street, where he was tried and judgment rendered in his favor, from which the city took its appeal to the court of criminal correction, where it came to trial.

The evidence, which is undisputed, was to the effect that Mr. Slupsky lived on the south side of the Lindell boulevard in the city of St. Louis. His back yard was from 100 to 125 feet in depth and was divided from the back yard of the Prince family, who lived in the adjoining premises on the west, by a wire fence that was high enough to come up to Mr. Slupsky's chest, and a hedge about half as high as the fence, along which it grew. On the date charged in the report or information, some of the younger members of the Prince family, including three boys, the youngest being 17 years old, and their sisters who were young ladies of various ages that come within that description, were at luncheon in the dining room in the rear end of their house, when one of them, Benton, the youngest of the brothers, went out into the yard, where he heard a turmoil in the Slupsky residence, and soon Mr. Slupsky came down his back steps apparently driving his children before him, and talking to the Prince boy in a loud tone and with much profanity and vile language, and threatening not only him, but the Princes generally. He came up to the fence, where he stood for a while continuing the same kind of conversation, shaking his fists and swaying his body while a few people gathered in the alley, looked over the fence and listened. Mrs. Noonan, whose house fronted on Pine street, the next thoroughfare south of the Lindell boulevard, and whose back yard abutted on the alley which divided it from the Slupsky back yard, was in the house with her daughter and a child, heard it and went out and listened, and remarked that she would not stand for such language. Mr. Desloges, a...