State v. Cleveland, 45680

• Decision Date: 09 May 1970
• Docket Number: No. 45680,45680
• Citation: 469 P.2d 251,205 Kan. 426
• Parties: STATE of Kansas, Appellee, v. Franklin CLEVELAND, Appellant.
• Court: Kansas Supreme Court

Page 251

469 P.2d 251

205 Kan. 426

STATE of Kansas, Appellee, v. Franklin CLEVELAND, Appellant.

No. 45680.

Supreme Court of Kansas.

May 9, 1970.

Rehearing Denied June 4, 1970.

Syllabus by the Court

1. 'Disturbance of the peace' is a disturbance of public tranquility or order and may be created by any act which molests inhabitants in the enjoyment of peace and quiet or excites disquietude or fear.

2. The public peace to be protected is that invisible sense of security and tranquility so necessary to one's comfort and which every persons feels to be under the protection of the law.

3. Neither the First Amendment to the Constitution of the United States nor the Bill of Rights of the Constitution of the State of Kansas is a license to disturb the peace and tranquility of respectable young men and women, to be found in a university student union building, by the use of loud and perverted language.

4. In a prosecution for disturbing the peace by the use of profane and vulgar language, and rude and challenging behavior, the record is examined and it is held, (1) the elements of the offense were established by the evidence, (2) the trial court did not err in determining the language used was obscene in the light of the place and circumstances of its use and (3) the evidence did not establish abuse of criminal administration.

Charles S. Scott, of Scott, Scott & Scott, Topeka, argued the cause, and J. Nelson Thompson, Kansas City, Mo., was with him on the brief for appellant.

Ronald D. Innes, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellee.

HATCHER, Commissioner:

This is an appeal from a conviction and sentence in a prosecution for disturbance of the peace.

The defendant, Franklin Cleveland, was charged with disturbing the peace and quiet of Jim Reynolds and other persons at the Student Union Building of Kansas State University, Manhattan, Kansas, by the use of profane and vulgar language, and rude and challenging behavior, on the 7th day of January, 1969, contra to K.S.A. 21-950. Appellant's case was consolidated for trial with that of Andrew Rollins who had been charged with a similar offense against Michael Huston and other persons on the same occasion. A jury trial was waived and the case was tried before the judge of the district court. Both defendants were found guilty and each fined fifty dollars.

Cleveland has filed a separate appeal.

Michael D. Huston is a corporal in the Marine Corps and a member of officers selection team for the purpose of recruiting officers for the marines. On January 7, 1969, he was working in that capacity in the lobby of the Student Union Building of the Kansas State University. Huston was seated at a table when he was approached by Andrew Rollins and the defendant, Franklin Cleveland. They engaged Huston in conversation by asking him question and then interrupted his answers. In the course of the dialogue Huston was called a killer, a mercenary and a prostitute. However, that language was mild, indeed, compared to that which was spoken generally. Rollins and the defendant were about eighteen inches from Huston during the episode.

The language used in this shocking dialogue is so disgusting that we will not defile the pages of our reports with a particular recital. It will suffice to state that language was directed to the desecration of motherhood of the most depraved sort. The marines, the flag and the President of the United States were referred to in dissolute, lewd and perverted language.

There were about twenty young men and women in the vicinity of the recruiting table. We will present in some detail the testimony as to the demeanor of the defendant and Rollins and the effect of the dialogue on the people in the area.

James Reynolds, program director, and whose duty it was to supervise the Student Union Building and maintain order, testified:

'He did not mention anything to Mr. Cleveland about his remarks on January 7, 1969. His reason for not saying anything to him was because it probably would have precipatated an incident in the lobby of the Union. He was aware that there were KBI people present. Yet, in view of the fact that the law enforcing officers were present the thought perhaps that this might set off an incident that would get beyond control. He does not feel qualified to make judgment as to whether the KBI agents would be able to control any incident that may occur following any confrontation that he may have made with Cleveland. * * *'

Another witness testified:

'Q. You've testified that you saw Mr. Cleveland in the area, what was Mr. Cleveland doing, if you know?

'A. He was accompanying Mr. Rollins at that time.

'Q. You've commented as to what Mr. Rollins said, would you please tell the court what you observed the general demeanor of Mr. Rollins and Mr. Cleveland to be at about 4:45, during this period of time that he was talking to the corporal?

'Q. (By Mr. Innes) Could you describe for the court the actions of first Mr. Rollins at the time you first observed him upon coming into the union?

'A. Mr. Rollins was arguing and-was the individual making the most conversation, the most conversation with the Marine Corps Recruiter and when the Marine Corps Recruiter would attempt to answer his questions, Mr. Rollins would interrupt him not allowing him to answer the questions. In fact at the end of the interview, he did not seem entirely rational, he appeared to be upset and in my estimation argumentative.

'A. He read this article to the marine recruiter and then asked if he had-the recruiter had anything to say. When the recruiter attempted to answer his questions, the conversation was started again by Rollins and Mr. Cleveland and not allowing him the opportunity to answer any questions that was prefaced to him.

'Q. And what was his demeanor if you know?

'A. He appeared to be angry.

'Q. He appeared to be angry, and now you mean Mr. Cleveland?

'A. Yes.

'Q. During the time that Mr. Cleveland and Mr. Rollins were talking to the Marine Corps recruiter, what-if you know-what was their-how loud were they talking, if you know?

'A. Quite loudly.

'Q. And was Corporal Huston talking in a loud manner?

'A. I couldn't hear Corporal Huston, he was talking in a very soft voice.'

There was further testimony by a KBI agent, Robert Clester--

'Q. Allright. And what was the reaction of the other people standing around, did-just tell the court what was their reaction at the time these two defendants were talking to the recruiter?

'THE WITNESS: Some were attentive and some were-gave the impression to me that they were offended and were moving away.

'Clester noted that the people who were laughling and enjoying the dialogue between Rollins and Cleveland and Corporal Huston were a group gathered around the table with Rollins and Cleveland. Others in the area appeared to be offended and moved away upon hearing the conversation and he observed no one back in the crowd laughling.'

The appellant first contends that the dialogue between the defendant, Rollins and Huston, the marine recruiter, and the context in which the profanity was used, did not constitute the offense of disturbance of the peace within the purview of K.S.A. 21-950. That statute provides:

'Every person who shall willfully disturb the peace and quiet of any person, family or neighborhood, shall upon conviction thereof be fined in a sum not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months.'

' Breach of peace' of 'disturbance of the peace' is a disturbance of public tranquility or order and may be created by any act which molests inhabitants in the enjoyment of peace and quiet or excites disquietude or fear. It has been said that the public peace to be protected is that invisible sense of security and tranquility so necessary to one's comfort and which every person feels to be under the protection...