State v. Becker

• Citation: 51 Wis.2d 659,188 N.W.2d 449
• Decision Date: 25 June 1971
• Docket Number: No. 161,161
• Parties: STATE of Wisconsin, Respondent, v. Paul Dismas BECKER, Appellant. State
• Court: Wisconsin Supreme Court

Page 449

188 N.W.2d 449

51 Wis.2d 659

STATE of Wisconsin, Respondent, v. Paul Dismas BECKER, Appellant.

State No. 161.

Supreme Court of Wisconsin.

June 25, 1971.

This is an appeal from the judgment of the circuit court for Milwaukee county which affirmed a judgment of the county court of Milwaukee county finding Paul Dismas Becker guilty of disorderly conduct in violation of sec. 947.01(1), 1969 Stats. A jury trial was waived, and trial was held to the court. The state called only the arresting officer as a witness, and the defense rested without putting in any testimony. The defendant was found guilty and sentenced to ninety days in the county jail. The sentence, however, was stayed, and he was placed on probation for twelve months and ordered to pay the costs of the action. The appeal to the circuit court was upon the record below, and the circuit court affirmed the county court's judgment without opinion.

Samson, Friebert, Sutton & Finerty, Robert E. Sutton, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, E. Michael McCann, Dist. Atty., of Milwaukee Co., Milwaukee, for respondent.

HEFFERNAN, Justice.

The state's only witness, Patrolman James Storney, testified that on the afternoon of January 26, 1970, he was on duty with a number of other police officers in and about the Boston Store in Milwaukee for the purpose of maintaining order in connection with a demonstration that was taking place there. At approximately 4:55 P.M. an officer named Reich arrested a female juvenile, allegedly for shoplifting. Officer Storney assisted Officer Reich in attempting to escort the girl from the store. Storney was holding the girl by her left elbow, while Reich was holding her by the other arm. Officer Storney described what then happened:

'He (Becker) was yelling in a loud voice as to the juvenile we had in custody to drop the hat (which she had allegedly stolen) and after yelling that several times he then proceeded to yell to me what my badge number was. 'What's you badge number, officer?' And I--at this point continuing to ask for my badge number he grabbed me by my right arm and began shoving his way between my partner and myself. I was on the left side of the juvenile, and my partner was on the right side of the juvenile to her rear. At this point as the jostling took place I lost my grip on the girl, but my partner still had the grip on (her) arm. At this point I then placed--I turned around and placed Mr. Becker under arrest.'

When asked to indicate how loud the defendant spoke, the patrolman said, 'He was not at the top of his vocal capacity, nor was he at the bottom or at normal usage of his vocal cords. He was yelling very loudly.'

The patrolman testified that there were more than ten people in the area at the time the incident occurred.

Defendant Becker was charged with disorderly conduct. The complaint stated:

'WHEREAS, James Storney, being first duly sworn on oath, states upon personal observation * * * that Paul Dismas Becker * * * on the 26th day of January A.D., 1970, in the County of Milwaukee, Wisconsin, did unlawfully engage in disorderly conduct under circumstances in which such conduct tended to cause and provoke a disturbance, towit: defendant did at 333 W. Wisconsin Ave. in the City of Milwaukee, interfere with the complainant a City of Milwaukee Police Officer while complainant was taking another person into custody, contrary to Section 947.01(1) of the statutes, and against the peace and dignity of the State Wisconsin * * *.'

Defendant's initial attack is upon the complaint, alleging that it was insufficient in that it lacked specificity in regard to the nature of the defendant's conduct. A complaint must state facts sufficient in themselves or admitting to reasonable inferences which are sufficient to establish cause. Sec. 968.01, 1969 Stats.; State ex rel. Cullen v. Ceci (1970), 45 Wis.2d 432, 173 N.W.2d 175; State ex rel. Evanow v. Seraphim (1968), 40 Wis.2d 223, 161 N.W.2d 369; State v. Williams (1970), 47 Wis.2d 242, 177 N.W.2d 611; State ex rel. Pflanz v. County Court of Dane County (1967), 36 Wis.2d 550, 153 N.W.2d 559. The term, 'probable cause,' contemplates the existence of facts and circumstances which would incite an honest belief in a reasonable man, acting under all the circumstances, that the charges made are true. A complaint is sufficient if a fair-minded magistrate could reasonably conclude that the facts alleged justify further criminal proceedings and that the charges are not merely capricious. State ex rel. Cullen v. Ceci, supra; Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 14 L.Ed.2d 345. While the complaint must state the essential facts constituting the crime charged, the defendant is not entitled to have the complaint give an encyclopedic listing of all evidentiary facts upon which the state intends to rely. In State ex rel. Evanow v. Seraphim, supra, this court said that the complaint need only give a clear and complete description of what the defendant is alleged to have done. We said, 40 Wis.2d at page 230, 161 N.W.2d at page 372, that the complaint must answer the 'Five W's':

'What is the charge? Who is charged? When and Where is the offense alleged to have taken place? Why is this particular person being charged? Actually, there is a sixth 'W.' As the journalism professor puts it, 'Unless the source (of the news) is obvious, the reader always asks at once, 'Who says so?"'

The complaint in this case meets the criteria set forth in Evanow. It charges the defendant, Paul Dismas Becker, with disorderly conduct, in violation of sec. 947.01(1), States. It states that the offense took place on January 26, 1970, at 333 West Wisconsin Avenue in the city of Milwaukee. The defendant was being charged because he allegedly interfered with the arrest of another person whom the complainant was taking into custody. The sixth 'W' is also answered, for the complaint states that charge is based on the personal observations of the complainant. The complaint is sufficient.

We are also satisfied that the defendant's assertion that the statute was unconstitutionally applied is equally without merit. It appears that defendant claims that the activities for which he was convicted were, in fact, protected free speech and expression. We have pointed out that the guarantees against the abridgement of freedom of speech are not absolute. State v. Zwicker (1969), 41 Wis.2d 497, 164 N.W.2d 512, 32 A.L.R.3d 531, cert. den. 396 U.S. 26, 90 Sup.Ct. 199, 24 L.Ed.2d 147; State v. Givens (1965), 28 Wis.2d 109, 135 N.W.2d 780. In Cox v. Louisiana (1965), 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, the United States Supreme Court said:

'The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.' See, also, State v. Givens, supra; State v. Zwicker, supra; State v. Maker (1970), 48 Wis.2d 612, 180 N.W.2d 707.

Conduct which 'involves substantial disorder or invasion of the rights of others is * * * now immunized by the constitutional guarnatee of freedom of speech.' Tinker v. Des Moines School District (1969), 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731; see, also, Annot., 32 A.L.R.3d 551, 556. The legislature has the right to reasonably regulate the conduct of its citizens for the protection of society as a whole, even when that conduct is intertwined with expression and association. Cameron v. Johnson (1968), 390 U.S. 611, 617, 88 S.Ct. 1335, 20 L.Ed.2d 182; Garvey, Wisconsin's Disorderly Conduct Statute: Why It Should Be Changed, 1969 Wisconsin Law Review 602, 613.

In State v. Zwicker, supra, page 509, 164 N.W.2d page 518, this court rejected the contention that the Wisconsin disorderly conduct statute was so unnecessarily broad as to invade the area of protected freedoms, saying:

'The statute does not proscribe activities intertwined with protected freedoms unless carried out in a manner which is violent, abusive, indecent, profane, boisterous or unreasonably loud, or conduct similar thereto, and under circumstances in which such conduct tends to cause or provoke a disturbance. Prohibition of conduct which has this effect does not abridge constitutional liberty.' See, also, State v. Maker, supra, 48 Wis.2d pp. 615, 616, 180 N.W.2d p. 709.

It is apparent, taking into consideration the conduct of the defendant and the circumstances under which that conduct took place, that Becker's activities went beyond mere expression of ideas.

Sec. 947.01(1), Stats., proscribes certain conduct:

'Disorderly conduct. Whoever does any of the following may be fined not more than $200 or imprisoned not more than 90 days or both:

'(1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.'

The trial court found the statute violated in two respects--the loud yelling of the defendant and his pushing and jostling of the patrolman. We note, however,...