State v. Frank Mancini

• Decision Date: 02 August 1917
• Citation: 101 A. 581,91 Vt. 507
• Parties: STATE v. FRANK MANCINI
• Court: Vermont Supreme Court

101 A. 581

91 Vt. 507

STATE v. FRANK MANCINI

Supreme Court of Vermont

August 2, 1917

October Term, 1916.

COMPLAINT for breach of the peace. Plea, not guilty. Trial by jury in the Brattleboro Municipal Court, Frank E. Barber Judge. Verdict, guilty. Respondent excepted. The opinion states the case.

Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.

Gibson & Daley and W. D. Smith for respondent.

O B. Hughes, State's Attorney, for the State.

Present: MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.

OPINION

MUNSON

Mancini has been convicted in the municipal court of Brattleboro on a complaint charging a breach of the peace by tumultuous and offensive carriage, and by assaulting one Adin Miller. A dance was in progress in the Grange hall in Dummerston, and the constable of Dummerston was in attendance in his official capacity. Sometime in the middle of the night he procured the attendance of Miller, who was a deputy sheriff, but wore nothing on this occasion indicative of his office. Three men had been arrested before the occurrence in question, and were then being confined in the lodge room. This room and the supper room were in the rear of the building on the lower floor, and were connected with an ante-room in front, which was reached by a stairway from the main hall above. As Miller was coming from the supper room he saw four men in the ante-room coming towards him with bottles in their hands, one of whom was Mancini. Miller, without saying anything, stepped up to Mancini and took hold of some of the bottles he was carrying, whereupon Mancini and another of the party wrenched them from Miller's hands. Upon this Miller "collared" Mancini, and Mancini pushed his hands over Miller's face, trying to get at his throat. At the time Mancini attempted this, Miller said, "You are fighting an officer; you are under arrest." Miller kept his hold on Mancini and took him to the lodge room, Mancini fighting him all the while in an effort to get away. Miller testified that he arrested Mancini for a breach of the peace.

The exceptions state that the respondent made several requests to charge, and was allowed exceptions to the court's refusal to comply with them; and these requests are referred to and made a part of the bill, and are required to be printed. Two of these exceptions are argued, but they cannot be considered, as no copy of the requests has been furnished. The transcript of the evidence and charge is referred to and made controlling according to section 2 of County Court Rule 31, and it appears from this that certain exceptions to the admission and exclusion of evidence were taken by the respondent, and that there was a motion to direct a verdict on several grounds presented informally in an oral discussion. This covered the claims that there was no evidence to warrant the finding of a breach of the peace or of any violation of law by the respondent; that the respondent had a right to the possession of the bottles, and to use force enough to retain possession; that Miller acted throughout without authority, and that the respondent had a right to resist him as he did.

There was ample evidence to sustain the complaint, if the circumstances were such as to justify Miller in arresting without a warrant. If this was the case it was the respondent's duty to submit, and his resistance would constitute a breach of the peace as charged. State v. Carpenter, 54 Vt. 551. But if the respondent's previous conduct was not such as to make him liable to arrest without a warrant, Miller's interference was, in the circumstances, an assault upon the respondent which he could lawfully resist. State v. Hooker, 17 Vt. 658; 2 Bish. Cr. Law, § 37; note, 84 Am. St. Rep. 698. So in order to determine whether the respondent had a right to make the resistance he did, it will be necessary to ascertain whether the officer could lawfully make the arrest. 2 R. C. L. 474; note, 84 Am. St. Rep. 700.

An officer may arrest without a warrant for a breach of the peace committed in his presence, and in some circumstances he may do this to prevent a breach of the peace. 5 C. J. 408. The question whether certain conduct constitutes a breach of the peace often depends largely upon the circumstances of the particular case. An act which would be lawful in some circumstances may amount to a breach of the peace if done in other circumstances. 8 R. C. L. 285. If it were conceded that respondent's conduct previous to his being "collared" by Miller did not constitute a breach of the peace by tumultuous and offensive carriage, this would not be determinative of the case. A breach of the peace may be committed in other ways than those specified in P. S. 5870. This section is not a definition of the crime known as breach of the peace, but is a statute defining certain modes of committing that offence. State v. Boyd, 91 Vt. 88, 99 A. 515. The term is generic, and includes all violations of the public peace or order. State v. Clark, 64 W.Va. 625, 63 S.E. 402.

A breach of the peace is described as "a violation of public order; the offence of disturbing the public peace." Bouv. Dict. The public peace is that sense of security and tranquillity, so necessary to one's comfort, which every person feels under the protection of the law; and a breach of the peace is an invasion of the protection which the law thus affords. State v. Archibald, 59 Vt. 548, 9 A. 362, 59 Am. Rep. 755. A violation of public order or decorum, if calculated and intended to disturb the public tranquillity, may constitute a breach of the peace. Bouv. Dict.; Davis v. Burgess, 54 Mich. 514, 20 N.W. 540, 52 Am. Rep. 828; Stewart v. State, 4 Okla. Crim. 564, 109 P. 243, 32 L.R.A. (N.S.) 505; Delk v. Commonwealth, 166 Ky. 39, 178 S.W. 1129, L.R.A. 1916B, 1117.

Mr. Bishop says that whatever, of sufficient magnitude for the law's notice, one willfully and unjustifiably does, to the disturbance of the public order or tranquillity, is indictable at common law. 1 Bish. Cr. Law, § 533. He refers to "breaches of the peace" as a term of indefinite, yet large, and sometimes greatly expanded, meaning, and says further that "commonly and more narrowly it signifies any criminal act of a sort to disturb the public repose." Section 536. With reference to the disturbance of assemblies he says: "When people assemble for worship, or in their town or other like meetings, or probably always when they come together in an orderly way for a purpose not unlawful, the common law makes it a crime to disturb their meeting. What amounts to disturbance varies with the nature and objects of the meeting." Section 542.

P. S 5871 prescribes the penalty incurred by "a person who by a disorderly or unlawful act disturbs a town, society or district meeting, or a school, or any meeting lawfully assembled." In considering what constituted a disturbance under a similar statute in Massachusetts, Shaw, C. J., said: The question "cannot easily be brought within a definition applicable to all cases. It must depend somewhat upon the nature and character of each particular kind of meeting, and the purposes for which it is held, and much also on the usage and practice governing such meetings. * * It must be decided as a question of fact in each particular case; and although it may not be easy to define it beforehand, there is commonly no great difficulty in ascertaining what is a willful...