State v. Maker
| Decision Date | 03 November 1970 |
| Docket Number | No. S,S |
| Citation | 180 N.W.2d 707,48 Wis.2d 612 |
| Parties | STATE of Wisconsin, Respondent, v. Bryan Jerome MAKER, Appellant. tate 51. |
| Court | Wisconsin Supreme Court |
The defendant was charged with disorderly conduct, contrary to sec. 947.01, Stats., the complaint stating that the defendant, on October 1, 1968, '* * * did unlawfully engage in disorderly conduct under circumstances in which such conduct tended to cause and provoke a disturbance, to-wit: defendant performed on a stage at the Bastile tavern, situated at 2311 South Howell Avenue, in the City of Milwaukee, in said County, wearing only a supporter of his private parts and paint on his body * * *.'
On October 23, 1968, the action was tried in the misdemeanor branch of the county court of Milwaukee, Judge Christ T. Seraphim presiding. The defendant was found guilty, the court finding his conduct to be 'indecent' and 'obscene.' Defendant appealed the conviction to the circuit court.
On March 7, 1969, a trial de novo was held before acting circuit judge John A. Fiorenza. The district attorney and defendant's attorney stipulated that the testimony and proceedings had before Judge Seraphim would stand as the testimony and record in the case before Judge Fiorenza. The court found the defendant guilty of disorderly conduct, finding that '* * * his (defendant's) actions were disorderly under the circumstances, * * * (and) did cause and provoke a disturbance.' Defendant was sentenced to thirty days under the 'Huber Law,' sec. 56.08, Stats. Defendant appeals.
Eisenberg, Kletzke & Eisenberg, Milwaukee, for appellant; Alan D. Eisenberg and Sander Karp, Milwaukee, of counsel.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Theodore J. Hodan, Asst. Dist. Atty., Milwaukee, for respondent.
The maintenance of ordered liberty is a basic objective of our constitutional form of government. Order and liberty are alike to be protected, neither to be extinguished in favor of the other. Order without liberty is tyranny. Liberty without order is anarchy. The constitutional mandate is that both excesses be avoided. 1
In any challenge to the constitutionality of a statute defining and prohibiting disorderly conduct, as to words spoken 2 or conduct engaged in, 3 the right to maintain the public peace must be considered along with the imperative to protect constitutionally assured personal freedoms. Here the appellant urges that we find unconstitutional as overbroad the Wisconsin statute prohibiting disorderly conduct. 4 Here, as in earlier cases, 5 we uphold the constitutionality of that statute finding it to be a proper legislative response to the Siamese twin-like mandate to maintain public order and protect personal freedoms, repeating that:
6
This court's emphasis upon the relatedness of conduct and circumstances in the statute is no more than a recognition of the fact that what would constitute disorderly conduct in one set of circumstances, might not under some other. When a famed jurist observed, 'The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,' 7 the comment related to the crowdedness of the theater as well as to the loudness of the shout. It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.
The statute upheld, the issue on appeal becomes: Was the conduct of the defendant one of the types of conduct enumerated in the statute and, if so, was it carried out 'under circumstances in which such conduct tends to cause or provoke a disturbance?' As this court has repeatedly stated, the test on appeal is 'whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.' 8 Here that issue is narrowed by the absence of conflict in the testimony as to the events leading up to the arrest of the defendant on a charge of disorderly conduct. Two witnesses testified, the arresting officer for the state, the defendant for the defense, and their testimony is not in conflict on material aspects of the case. However, the matter of the relatedness of the conduct to the circumstances requires an analysis of the exact situation presented to the trial court by the testimony and the photographs introduced into evidence.
PLACE. The place involved was a tavern on the south side of the city of Milwaukee, known as the Bastile.
EVENT. The evening of the arrest was a special occasion in that a number of orchestras or musical groups appeared in sequence to entertain the audience.
ROLE. The defendant appeared as a musician member of an orchestra or musical group that was part of the evening's entertainment.
ATTIRE. The only article of clothing worn by the defendant was a jockstrap or athletic supporter. As the complaint states, he was 'wearing only a supporter of his private parts and paint on his body.' One picture is certainly worth several thousand words in describing the attire or lack of attire of the defendant, but it is enough here to state that the photographs establish he wore only a type of supporter or suspensory ordinary worn under outer garments, usually under trunks in a gym. Holding as we do that the defendant's dressing as he did here constituted indecent and disorderly conduct within the statutory prohibition, did it tend to create or provoke a disturbance?
INTENT. The defendant testified that he appeared as he did to 'satirize' the audience. Asked by his attorney, 'As a matter of fact, you were satirizing the so-called Hippies and protestors who were there on the night in question?', the defendant answered, 'That's right.' As to the audience present, the police officer testified, '* * * these were supposedly Hippies that were there at the time.' Defense counsel argues that this established that 'You have an audience that's accustomed to the unusual.' ...
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Com. v. Sees
...Seattle v. Marshall, 83 Wash.2d 665, 521 P.2d 793, cert. denied, 419 U.S. 1023, 95 S.Ct. 499, 42 L.Ed.2d 297 (1974); State v. Maker, 48 Wis.2d 612, 180 N.W.2d 707 (1970), cert. denied, 401 U.S. 1013, 91 S.Ct. 1256, 28 L.Ed.2d 550 (1971). See Annot., 49 A.L.R.3d 1084, 1094 (1973). But it now......
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State v. Douglas D.
...is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation." State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970). ¶ 16. Douglas first argues that "conduct," as used in § 947.01, does not include speech unless such speech is inter......
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State v. Breitzman
..."the right to maintain the public peace" with "the imperative to protect constitutionally assured personal freedoms." 48 Wis. 2d 612, 615, 180 N.W.2d 707 (1970). In State v. Werstein we upheld § 947.01 (1971-72) once again, emphasizing that "[i]t is the combination of conduct and circumstan......
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State v. AS, 99-2317.
...cases, our prior cases also indicate that the actual effects of a defendant's conduct are probative. For example, in State v. Maker, 48 Wis. 2d 612, 180 N.W.2d 707 (1970), we reviewed a defendant's conviction of disorderly conduct and specifically considered the reaction of those observing ......