People v. Loveridge

• Decision Date: 28 June 1889
• Citation: 75 Mich. 488,42 N.W. 997
• Court: Michigan Supreme Court
• Parties: PEOPLE EX REL. WARE, PROSECUTING ATTORNEY, v. LOVERIDGE, CIRCUIT JUDGE.

42 N.W. 997

75 Mich. 488

PEOPLE EX REL. WARE, PROSECUTING ATTORNEY, v. LOVERIDGE, CIRCUIT JUDGE.

Supreme Court of Michigan

June 28, 1889

Application for writ of mandamus, upon relation of William E Ware, county attorney of Branch county, to Noah P. Leveridge judge of circuit court, Branch county, to allow the prosecution of William Foster, upon an information filed against him in that court, for entering while drunk the dwelling of William Goodwin, and using therein obscene language towards him and his family.

SHERWOOD C.J., dissenting.

CAMPBELL J.

Relator applies for a mandamus to compel respondent to assume jurisdiction over and try an information for what is claimed to have been a breach of the peace. Such an application for the exercise of our extraordinary jurisdiction in a case of private trespass for which a civil action would lie is unprecedented, as I believe, in jurisprudence. The only instance in which we have ever before been called on for a mandamus was in a series of cases of felony affecting the public interests directly where indictments had been found in the Wayne circuit court, and certified to the recorder's court of Detroit for trial, and the latter court, on doubts of jurisdiction, refused to try them. The cases involved constitutional questions, and the calling of a grand jury had been resorted to in order to reach parties who would not have been prosecuted without it. The circumstances were urgent and peculiar; and, while I am not prepared to say we cannot use our discretionary powers in petty misdemeanors, I do not think the interference would be desirable, or that the public interest would be subserved in compelling a circuit judge to do what we could not require of a prosecuting attorney; but as the questions have been presented and argued, and the relator's zeal has induced him to regard the matter as one of practical moment, there will be no harm done by considering it.

The facts set out show, if true, that one William Foster, while drunk, entered the house of one William Goodwin, and in presence of said Goodwin, his wife, Mary Goodwin, and his son, Clarence Goodwin, used some obscene language concerning his own wife who was not present, and another person, not described, whom he referred to as Anna, and used some other abusive and improper language, partly not specified. There is nothing in the affidavit on which Foster was held to examination indicating that he threatened, or that Goodwin expected or feared, personal violence. As described, the performance was the vaporing of a filthy-minded person whose tongue was loosed by drinking, and who was certainly an unsavory and undesirable visitor, but nothing legally worse. The only ground on which relator has endeavored to base a claim of breach of the peace is that this language was calculated to provoke violence; and it is on the ground that this case does not happen to come within the penalties of any of our statutes that it is claimed to be punished as a common-law misdemeanor, and therefore beyond the jurisdiction of a justice of the peace, and punishable by a heavy fine and an imprisonment at least quadruple of that which a justice could impose, and more than fourfold heavier than any court of record could impose for similar offenses committed in public and not in private, and directly and unavoidably violating the public peace. No principle is more universally settled than that which deprives all courts of power to infer, from their judicial ideas of policy, crimes not defined by statute or by common-law precedents. Nothing can be a crime until it has been recognized as such by the law of the land. It is a fixed rule that an act must be left to civil remedies, unless it has been recognized as so dangerous to the public as to need repression or punishment as a wrong to the body politic. Our statutes which contain the saving clause covering offenses which may have been accidentally overlooked in framing them, confine it to offenses punishable at common law. How. St. � 9434. This must necessarily mean the common law as previously recognized and defined by the only source of the common criminal law,-in the course of judicial precedents,-in the light of which all of our statutes themselves are construed. It is a significant fact that very few, and it may perhaps be said that none, of the recognized books of authority on the criminal law contain any such title as "Breach of the Peace," with a definition of it. The books almost universally divide crimes into classes; and breaches of the peace, so far as they are found defined at all, are found either as offenses against the lives and persons of individuals, or as public disturbances, except where for certain reasons they are made felonies. But there is a class referred to in the decisions and commentaries which seems to fix the nature of the offenses which may be so classed, beyond doubt. One of the primary objects of the creation of the office of conservators and justices of the peace was to prevent breaches of the peace, by putting persons under bonds for keeping the peace, or for their good behavior, which includes breaches of the peace, and more. The breach of the peace threatened was the occasion for requiring such security. Any breach of the peace committed afterwards forfeited the recognizances. The rulings under these heads give us the most reliable information of what was meant by the term "breach of the peace." The present case is very plainly excluded by all the reliable authorities from that category. The only cases of breach of the peace, not involving open disturbance in public places, and to the actual annoyance of the public at large or persons employed and actually engaged in public functions, require personal violence, either actually inflicted or immediately threatened. There are, in some of the definitions, references to language tending to provoke a breach of the peace, and relator's claim is based on this; but the authorities have very plainly held that this covers nothing that is not meant and adapted to bring about violence directly. It is laid down, very positively, that insulting and abusive language does not come within the rule, but it must be threats of immediate violence, or challenges to fight, or incitements to immediate personal violence or mischief. It has always been recognized that, in a certain sense, slander is actionable chiefly for the reason that it has a provoking tendency; but slander, no matter how offensive, is not indictable, and it is not recognized as ground for requiring security to keep the peace. No words whatever, from their offensiveness and inciting tendency, are held to be breaches of the peace, with or without other circumstances not involving personal violence.

Hawkins in chapters 60 to 63 of his Pleas of the Crown, goes very fully into the subject, and points out the distinction always recognized by the authorities between words which, however abusive and offensive, may excite anger and those which directly incite to and invite violence; and, even when used in public, it is shown that they do not constitute an affray, which requires physical violence; and this is, as shown, the essential element of a breach of the peace committed, attempted, or directly and immediately threatened. This same distinction is recognized by Mr. Bishop in section 560, vol. 1, Crim. Law, where he refers to Com. v. Edwards, 1 Ashm. 46, a case directly in point. The same question is treated at some length, will illustration, in 4 Co. Inst. 180, 181, where the liability under a recognizance to keep the peace is discussed. It is also clearly dealt with in Wood's Institutes, p. 423. The question of what is meant by tending to provoke violence, which...