State v. Coomes, 34750

• Court: Supreme Court of Nebraska
• Citation: 102 N.W.2d 454,170 Neb. 298
• Docket Number: No. 34750,34750
• Parties: STATE of Nebraska, Plaintiff in Error, v. Kelley COOMES, Defendant in Error.
• Decision Date: 15 April 1960

Page 454

102 N.W.2d 454

170 Neb. 298

STATE of Nebraska, Plaintiff in Error, v. Kelley COOMES, Defendant in Error.

No. 34750.

Supreme Court of Nebraska.

April 15, 1960.

Syllabus by the Court.

1. In all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation.

2. Due process of law requires only that the accused be given sufficient notice of the nature of the charge against him in order that he may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.

3. In this state all public offenses are statutory; no act is criminal unless the Legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law.

4. There are no common law crimes in this state, and we only resort to common law definitions where general terms are used to designate crime.

5. A breach of the peace is a violation of public order. It is the same as disturbing the peace. The definition of breach of the peace is broad enough to include the offense of disturbing the peace; it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community.

6. Breach of the peace is a common law offense. The term 'breach of the peace' is generic and includes all violations of public peace, order, decorum, or acts tending to the disturbance thereof.

7. An information must inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution for the same offense.

L. E. Mitchell, County Atty., Rushville, for plaintiff in error.

Charles A. Fisher, Chadron, for defendant in error.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This is an error proceeding docketed in this court by the county attorney of Sheridan County, pursuant to leave granted, taking exception to the ruling of the district court for Sheridan County in the prosecution of a cause therein under section 28-818, R.R.S.1943. See Section 29-2315.01, R.S.Supp.1959.

On September 14, 1959, the county attorney of Sheridan County filed in the district court for Sheridan County an information against Kelley Coomes. The part of said information that is here material is as follows: '* * * that Kelley Coomes * * * did, on the 26th day of August A.D.1959, in the County of Sheridan and State of Nebraska aforesaid, wilfully and unlawfully disturb the peace and quiet of persons, families and the neighborhood, Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Nebraska.'

Section 28-818, R.R.S.1943, under and pursuant to which said charge was filed, provides: 'Every person who shall willfully disturb the peace and quiet of any person, family or neighborhood, shall upon conviction thereof be fined in any sum not exceeding one hundred dollars or be imprisoned in the county jail not exceeding three months.'

Defendant Coomes filed a demurrer to the information which, insofar as here material, alleged: '* * * demurs to the information because it does not state facts that constitute an offense punishable by the laws of this state, because the statute Section 28-818 R.R.S. under which the supposed (sic) offense is charged is unconstitutional and void, because it is so vague and indefinite, so uncertain and ambiguous, that it does not meet the definition of disturbing the peace at common law, and that it does not any where charge a breach of the peace or provide that a breach of the peace is an essential element of the charge, and because the same shows on the face that intent to create a breach of the peace is not alleged, proof of the same being necessary (sic) to make out offense of disturbing the peace and disorderly conduct or breach of the peace.'

The trial court sustained this demurrer, giving the following reason for doing so: 'The defendant then instanter filed his demurrer to the information, and the Court having heard argument thereon and being fully advised in the premises finds that the same is well taken and should be sustained because the said information fails to specify the acts constituting the offense charged therein, but finds that the statute under which prosection (sic) is brought is not unconstitutional and void as urged by the defendant. The Court finds that the information charges almost exactly in the words of the statute same being 28-818 R.S., 1943, but that regardless (sic) thereof it, the information, is not sufficient and that the demurrer is sustained and the cause dismissed.

'It is therefore Ordered and Adjudged that the demurrer of the defendant Kelly Coomes to the information filed herein charging him under Section 28-818 R.R.S.1943 in almost exact statutory words, is sustained and the cause dismissed and the defendant Kelley Coomes is hereby discharged * * *.'

The title to L.B. 461, which authorizes this procedure and under and pursuant to which it was taken, states it is: 'An Act * * * to provide in criminal cases on application of the county attorney for review by the Supreme Court on error proceedings of any ruling or decision of the district court adverse to the State of Nebraska; * * *.' Laws 1959, c. 121, p. 453. Consequently the question of the constitutionality of section 28-818, R.R.S.1943, is not properly before this court but only the question of whether or not the information is insufficient because it 'fails to specify the acts constituting the offense charged therein.'

Article I, section 11, of the Constitution of the State of Nebraska, provides, insofar as here material, that: 'In all criminal prosecutions the accused shall have the right * * * to demand the nature and cause of accusation, * * *.'

'Due process of law requires only that the accused be given sufficient notice of the nature of the charge against him in order that he may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.' Cowan v. State, 140 Neb. 837, 2 N.W.2d 111, 113. See, also, Dutiel v. State, 135 Neb. 811, 284 N.W. 321, 322.

'In this state all public offenses are statutory; no act is criminal unless the legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law.' Dutiel v. State, supra.

In Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 595, 27 L.R.A.,N.S., 478, we said: '* * * there are no common-law crimes in this state, and we only resort to common-law definitions where general terms are used to designate crime.' See, also, Fredericksen v. Dickson, 148 Neb. 739, 29 N.W.2d 334.

A breach of the peace is a violation of public order. It is the same as disturbing the peace. The definition of breach of the peace is broad enough to include the offense of disturbing the peace; it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community. See, State v. Clark, 64 W.Va. 625, 63 S.E. 402; State v. Long, 88 W.Va. 669, 108 S.E. 279; People v. Bartz, 53 Mich. 493, 19 N.W. 161; Fischbach v. Ohio State Racing Commission, Ohio App., 147 N.E.2d 258; People v. Parker, 208 Misc. 978, 138 N.Y.S.2d 2; Flores v. City and County of Denver, 122 Colo. 71, 220 P.2d 373; Woods v. State, 152 Tex.Cr.R. 338, 213 S.W.2d 685; City of St. Louis v. Slupsky, 254 Mo. 309, 162 S.W. 155, 49 L.R.A.,N.S., 919.

Breach of the peace is a common law offense. The term 'breach of the peace' is generic and includes all violations of public peace, order, decorum, or acts tending to the disturbance thereof. See, Faulkner v. State, 166 Ga. 645, 144 S.E. 193; Miles v. State, 30 Okl.Cr. 302, 236 P. 57, 44 A.L.R. 129; State v. Long, supra; City of Plattsburg v. Smarr, Mo.App., 216 S.W. 538; State v. White, 18 R.I. 473, 28 A. 968; State v. McCoy, 99 Ohio App....