State v. McNair, s. 35801
| Decision Date | 28 May 1965 |
| Docket Number | 35802,Nos. 35801,s. 35801 |
| Citation | 135 N.W.2d 463,178 Neb. 763 |
| Parties | STATE of Nebraska, Appellee, v. Rudolph McNAIR, Appellant. STATE of Nebraska, Appellee, v. Kelsey JONES, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. 'To disturb' is defined: To throw into discorder or confusion; to interrupt.
2. Any conduct contrary to the normal presentation of business which disturbs or interrupts the orderly progress of the proceedings of a city council is a disturbance.
3. The rule applicable to disturbance of public assemblies is that conduct which, being contrary to the usages of the particular meeting and class of people assembled, interferes with its due progress, or is annoying to the assembly in whole or in part, is a disturbance.
Thomas D. Carey, Wilbur L. Phillips, Omaha, for appellants.
Herbert M. Fitle, City Atty., Edward M. Stein, Deputy City Atty., Walter J. Matejka, Asst. City Atty., Charles A. Fryzek, Jr., City Prosecutor, Allen L. Morrow, Asst. City Prosecutor, Omaha, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.
The appellants were found guilty after a jury trial of the violation of a city ordinance of the city of Omaha, classified as disturbing an assemblage. The ordinance, No. 25.33.010, is as follows: Appellants have perfected an appeal to this court.
The city council of the city of Omaha, hereinafter referred to as council, started a regularly scheduled meeting at approximately 2 o'clock p. m. on Tuesday, October 22, 1963. The business of the council proceeded in regular order as it appeared on a prepared agenda from that time until approximately 2:37 p. m., when its proceedings were interrupted by the singing of the National Anthem. At that time the council was listening to the presentation of a lawyer on a zoning question for a client. The appellants, together with some 47 others who were sitting together in the city council chamber, at 2:37 p. m. stood up and began singing 'The Star Spangled Banner.' After they had completed singing the National Anthem, they began marching around the council chamber, singing 'We Shall Overcome,' which one of the appellants identified as the unofficial hymn of the Civil Rights Movement. The president of the council called for order and rapped his gavel several times to no avail. The appellants were then informed by a lieutenant of the Omaha police department, who was in charge of a police detail at the council chamber, that they were disturbing the council proceedings and would have to stop. When they continued singing and marching, he placed them under arrest.
The appellants are both ordained clergymen. On October 8, 1963, they had both appeared and spoken before the city council on the urgency and the need for a fair housing ordinance. On that occasion the council had before it a proposed ordinance which appellants were attempting to induce the council to introduce. Appellant Jones admitted that on October 8, 1963, he told the council that appellants would, if necessary, go to extremes within their constitutional rights to make their needs and urgencies known, and if need be would climb on the tables, under the tables, and would sit in the laps of the council members.
Appellant Jones admitted that he and appellant McNair, when they reached the council chamber on October 22, 1963, synchronized their watches with the clock in the chamber so that they could start the singing at the same time. Both of the appellants in effect testified that they had consulted their consciences and their training in moral behavior, and it was not possible for them to have done otherwise than they did on this occasion. Both of them admitted they knew that the matter in which they were interested was not on the council agenda on October 22, 1963. They were both familiar with the council procedure and knew that the council followed a prepared agenda, although it was possible for the council, upon request and with unanimous consent, to consider a matter not on the agenda. On this occasion, they made no attempt to obtain the consent of the counsel to place their matter on the agenda. They infer that they were prevented from doing so, but there is nothing in the record which gives the slightest indication that they made any attempt to have their matter considered on this occasion.
Did the acts of the defendants disturb the council proceedings? There is no question but that they did and that their actions were planned to do just that. The council was unable to continue with any business until the appellants and their group were removed from the council chamber. This removal was effected by the police, who had been alerted for such contingency. Appellants claim the verdict is not supported by the evidence. There is no merit to this contention. The evidence is substantial and fully adequate. It would have been a miscarriage of justice to have returned any other verdict on the evidence adduced.
The offense of disturbing a public meeting was recognized by the common law as a misdemeanor. Certain like provisions have been enacted into our statutes. The ordinance in question is a general regulation for all types of meetings. What constitutes a disturbance of a lawful assembly is not susceptible to specific definition, but must depend to some extent upon the nature and the character of the particular assemblage. However, while it may be difficult to specifically define beforehand, there is no problem in determining what constitutes a disturbance in a given case. In the instance of the city council, we hold that any conduct contrary to the normal presentation of business which disturbs or interrupts the orderly progress of the proceeding is a disturbance.
Webster's New International Dictionary (2d ed.), p. 757, defines the word 'disturb' as follows: 'To throw into disorder or confusion; to interrupt the settled state of.'
In People v. Malone, 156 App.Div. 10, 141 N.Y.S. 149, 'to disturb' is defined: '[T]o throw into disorder; to move from a state of rest or regular order; to interrupt; to throw out of course of order.' See, also, Commonwealth v. Porter, 67 Mass. (1 Gray) 476.
In State v. Mancini, 91 Vt. 507, 101 A. 581, the Supreme Court of Vermont, on the question of the disturbance of a public assembly (in that case a public dance) quoting from 2 Bishop, Criminal Law, s. 309, said: 'Speaking generally, the rule applicable to disturbances of public assemblies is that any conduct which, being...
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