Com. v. Jarrett

• Decision Date: 12 May 1971
• Citation: 269 N.E.2d 657,359 Mass. 491
• Parties: COMMONWEALTH v. Sandra JARRETT (and ten companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 657

269 N.E.2d 657

359 Mass. 491

COMMONWEALTH v. Sandra JARRETT (and ten companion cases ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 2, 1970.

Decided May 12, 1971.

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.

William P. Homans, Jr., Boston (Thomas G. Shapiro, Boston, with him), for Henry C. Levy and others.

Edward J. Barshak, Boston, for Sandra Jarrett and another.

Before TAURO, C.J., and SPALDING, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

A separate complaint against each of the eleven defendants charges that on August 19, 1969, at Cambridge, the particular defendant 'did disturb the peace of said Commonwealth, by making loud noises and outcries and by uttering in a loud tone, threatening, abusive, profane, indecent and violent language, and by striking divers grievous blows at divers persons, and by behaving in a violent and disorderly manner; to the great damage and common nuisance of the citizens of said Commonwealth, then and there inhabiting, being and residing, against the peace of the said Commonwealth and the form of the statute in such case made and provided.'

All of the defendants were tried in the Third District Court of Eastern Middlesex, were there found guilty and fined $200 each, and they appealed therefrom to the Superior Court. Each defendant filed a motion in the Superior Court to dismiss the complaint against him or her on the grounds: (1) that the statute under which it purports to lie, G.L. c. 272, § 53, in its applicable portion, is unconstitutionally vague and overbroad, in violation of the Constitution of the United States and of the Commonwealth; and (2) the complaint fails to state any crime under the laws of the Commonwealth.

Prior to trial in the Superior Court a judge of that court, acting under G.L. c. 278, § 30A, inserted by St.1954, c. 528, ² and without acting on the defendants' motions to dismiss the complaints, reported the following questions to this court for decision.

'1. Whether the phrase 'disturbers of the peace', as used in G.L. c. 272, § 53, to describe a class of persons punishable under said statute sets forth an offense with sufficient definiteness to withstand a challenge of constitutional infirmity on the ground of vagueness.

'2. Whether the phrase 'disturbers of the peace', as used in G.L. c. 272, § 53, to describe a class of persons punishable under said statute, sets forth with sufficient delimitation, a class of persons whose conduct may constitutionally be proscribed as criminal.'

General Laws c. 272, § 53, ³ provides that certain classes of persons described therein, including 'disturbers of the peace,' may be punished by imprisonment or a fine, or both. The words 'disturbers of the peace' were first added to that section when it was rewritten by St.1943, c. 377. The major emphasis of the arguments from counsel for the Commonwealth and for the defendants seems to be based on the assumption that § 53, as appearing in St.1943, c. 377, created a new statutory crime of being a disturber of the peace, and that the complaints in these cases charge the defendants with that statutory crime. We disagree with that assumption.

It was a crime under the common law to disturb the peace of the public, or some segment of the public, by actions, conduct or utterances, the combination of which constituted a common nuisance. Commonwealth v. Smith, 6 Cush. 80; Commonwealth v. Harris, 101 Mass. 29; Commonwealth v. Oaks, 113 Mass. 8. Most of such prosecutions involved allegations of disturbing noises in public places, and the noises were often alleged to consist of loud utterances, exclamations or outcries, and sometimes to include profanity.

The 1943 addition of the words 'disturbers of the peace' to G.L. (Ter.Ed.) c. 272, § 53, was the result of a recommendation made by a special commission established under c. 48 of the Resolves of 1941 'for the purpose of making an investigation and study of the criminal laws of the commonwealth and of drafting a penal code more in harmony with modern conceptions of crime, punishment and correction.' The report of the commission (1943 House Doc. No. 1462, [359 Mass. 494] p. 9) stated in part: 'we recommend the amendment of section 53 of chapter 272 of the General Laws in the following respects: * * * (2) By adding 'disturbing the peace, keeping a noisy and disorderly house and indecent exposure.' These offences are added to this statute because there is now no penalty for them. ⁴ In the Public Statutes, punishment as herein recommended was provided, but this punishment was omitted on codification. Our suggestion corrects this omission' (emphasis supplied). It is clear that the commission was not recommending the creation of a new statutory crime of disturbing the peace, but only recommending the provision of an express statutory penalty for a long recognized common law crime. We hold that when the Legislature adopted the commission's recommendation by enacting St.1943, c. 377, which added the words 'distrubers of the peace' to G.L. c. 272, § 53, it did not create a new statutory crime. It did not attempt to define any new crime or prescribe what acts would constitute a crime. It merely provided an express statutory penalty for a crime which then existed under the common law.

There have been numerous instances of a similar statutory treatment of common law crimes. It will suffice to point out a few of them. General Laws c. 265, § 2, provides penalties for the crime of murder. In referring to the predecessor of that statute in Commonwealth v. Webster, 5 Cush. 295, 303, the court said: 'In seeking for the sources of our law upon this subject, it is proper to say, that whilst the statute law of the commonwealth * * * (prescribes the penalties for criminal homicides), yet it nowhere defines the crimes of murder or manslaughter, with all their minute and carefully-considered distinctions and qualifications. For these, we resort to that great repository of rules, principles, and forms, the common law.' In Commonwealth v. Slaney, 345 Mass. 135, 138, 185 N.E.2d 919, 922, the court said: 'With respect to the crime of assault, as is frequently the case in our statutes relating to common law crimes, the Legislature has prescribed the penalty for the crime but has not defined the crime itself. G.L. c. 265, § 13A. For the definition of the crime of assault, resort must be had to the common law.' Further examples may be found in G.L. c. 265, §§ 13, 17 and 22, prescribing punishment for the common law crimes of manslaughter, robbery and rape, respectively. ⁵

Although G.L. c. 277, § 79, includes statutory forms of complaints or indictments for some of the offences listed in G.L. c. 272, § 53, it includes none for the crime of disturbing the peace. Section 79 states that as to crimes for which no form is provided therein, 'forms as nearly like the forms hereto annexed as the nature of the cases and the provisions of law will allow may be used; but any other form of indictment or complaint authorized by law may be used.' The complaints against the defendants in these cases have captions in the form authorized by § 79. Each complaint then contains language, commonly referred to as the charge or body thereof, alleging facts constituting the common law crime of disturbing the peace. The allegations are substantially similar to those contained in the complaints in Commonwealth v. Harris, 101 Mass. 29, and Commonwealth v. Oaks, 113 Mass. 8, ⁶ but in greater detail.

The fact that each complaint concludes with the statement that the acts of the defendant were against 'the form of the statute in such case made and provided' does not alter or detract from the language in the body of the complaint alleging a common law crime. Neither does it affect the validity of the complaint either under common law pleading or under our statutes. In Commonwealth v. King, 13 Metc. 115, 119, the court said that 'when an offence, punishable at common law only, is alleged to be contrary to a statute, this allegation may be rejected as surplusage.' Commonwealth v. Shattuck, 4 Cush. 141 146. John Bath & Co. Inc. v. Commonwealth, 348 Mass. 78, 82--83, 202 N.E.2d 249, cert. den. sub nom. Bath v. Massachusetts, 380 U.S. 977, 85 S.Ct. 1340, 14 L.Ed.2d 271, G.L. (Ter.Ed.) c. 277, §§ 17, 33 and 34.

The defendants argue that if they are being charged with the common law crime of disturbing the peace, then that part of our common law which is stated in the Harris and Oaks decisions, supra, with reference to this crime is unconstitutional because it is so vague and overbroad that it deprives them of their rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. They ask that we apply to this law the same test of vagueness which was applied in Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322, and Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888. The basic rule stated in those cases was that a 'statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666, 667. By thus limiting their citations and quotations, the defendants have overlooked or ignored other decisions stating concomitant parts of the same rule to the effect that the Constitution does not require impossible standards, that mere difficulty in determining whether certain marginal offences are within the meaning of the language under attack as vague does not automatically render it unconstitutional for indefiniteness, and that if the language which is challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices, it is constitutionally adequate. United States v....