State v. Polson

• Decision Date: 05 May 1979
• Docket Number: No. 50525,50525
• Citation: 594 P.2d 235,225 Kan. 821
• Parties: STATE of Kansas, Appellant, v. John POLSON, Appellee.
• Court: Kansas Supreme Court

Page 235

594 P.2d 235

225 Kan. 821

STATE of Kansas, Appellant, v. John POLSON, Appellee.

No. 50525.

Supreme Court of Kansas.

May 5, 1979.

Syllabus by the Court

In an appeal by the state from dismissal of a complaint charging the offense of disorderly conduct (K.S.A. 21-4101), the record is examined and it is Held : The trial court erred in dismissing the complaint on the ground that only one person heard the alleged statements of the defendant, all as more fully set forth in the opinion.

Robert J. Sandilos, Asst. Dist. Atty., argued the cause, and Curt T. Schneider Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellant.

Ted L. Peters, Wichita, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

This is an appeal by the state from an order dismissing the amended complaint against defendant John Polson, charging the crime of disorderly conduct (K.S.A. 21-4101).

The case was called for trial on September 18, 1978. Prior to commencement of the trial defendant made a motion to dismiss the amended complaint. For the purposes of the motion the parties stipulated that the evidence would show defendant used offensive, obscene or abusive language that would tend to reasonably arouse alarm, anger or resentment in others. The parties further stipulated that Jerry Skelton, the individual to whom defendant's remarks were directed, was the only person present at the time other than the defendant.

K.S.A. 21-4101 provides:

"Disorderly conduct is, with knowledge or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of the peace:

"(A ) Engaging in brawling or fighting; or

"(B ) Disturbing an assembly, meeting, or procession, not unlawful in its character; or

"(C ) Using offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.

"Disorderly conduct is a class C misdemeanor."

Defendant's motion to dismiss was predicated on the fact that only one person witnessed defendant's acts. Defendant contended that K.S.A. 21-4101(C ) requires the presence of more than one person by virtue of the use of the term "in others." The trial court sustained defendant's motion to dismiss the amended complaint and in so doing held:

"The Court finds that K.S.A. 21-4101 was intended to cover only situations where more than one person is present at the time of the conduct; accordingly, the Court finds that the Complaint fails to state a crime based upon the stipulation of the parties and therefore dismisses the Complaint/Information."

The state appeals from this determination pursuant to K.S.A.1978 Supp. 22-3602(B )(1). The sole issue on appeal is whether the trial court erred in holding that K.S.A. 21-4101 (disorderly conduct) defines as a crime only such disorderly conduct as occurs in the presence of more than one person other than the defendant.

The alleged conduct of defendant is set forth in the affidavit of Jerry Skelton in support of the complaint as follows:

"On June 1, 1978, I was in the Sedgwick County Courthouse and entered an elevator on the 10th floor to descend to the first floor; as the elevator was descending, a person I know to be John Polson entered the elevator on about the 3rd floor of the Courthouse. When the elevator arrived at the first floor, I left the elevator and commenced to walk down the hallway. I was followed by Mr. Polson who in a loud and angry manner started calling me names and using offensive, obscene and abusive language some of which is as follows: . . ."

The term repeatedly used by defendant to describe Skelton is deliberately excluded from the above quotation, but his language was offensive, obscene and abusive by any standard one might seek to apply.

This is the first time K.S.A. 21-4101 has been before this court for interpretation. Existing case law is based upon the statute prohibiting "disturbance of the peace," now repealed, as set forth in K.S.A. 21-950 (Corrick), which reads as follows:

"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."

The state cites for guidance certain cases decided under this prior statute:

In State v. Stroble, 169 Kan. 167, 217 P.2d 1073 (1950), this court affirmed a conviction of five counts of disturbing the peace. The defendant had, in separate instances, approached and made attempts to pick up school girls. This court said at p. 170, 217 P.2d at p. 1075:

"What constitutes a disturbance of the peace and quiet of a person or neighborhood, or what constitutes rude behavior or disorderly conduct depends upon the intention of the person uttering the language, the person to whom uttered, and all the surrounding facts and circumstances. All these elements are proper issues for the trier of the facts. (City of Fort Scott v. Arbuckle, 164 Kan. 49, 187 P.2d 348.) The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words Likely to produce violence to others. Stopping each little girl once and asking directions to a certain school or to ride might in some circumstances be considered proper or an act of kindness, but under the circumstances disclosed by the record in this case, it cannot be said the court was not justified in finding that a repetition of such approaches was a course of conduct amounting to molestation and a breach of the peace of the innocent children involved. This invasion of the privacy of innocent children and this disturbance of the peace of mind of parents to whom a civilized government should give unmistakable assurance of the safety of their loved ones in going to and returning from school, cannot have escaped the attention of the legislature in the passage of the law now under consideration."

In State v. Cleveland, 205 Kan. 426, 469 P.2d 251 (1970), this court affirmed a conviction for disturbance of the peace, based upon the defendant's language and behavior directed at a Marine Corps recruiter in the Kansas State University Union in Manhattan. At p. 429, 469 P.2d at p. 253 this court said:

" 'Breach of peace' or '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 of the law and for which all governments are created. (See 11 C.J.S. Breach of the Peace § 1, p. 817, and footnotes.)"

The state notes that each count in Stroble involved only the defendant and the victim. It also argues the language in Cleveland should be construed as placing the "sense of security and tranquility" upon society as a whole, each individual member included, and not merely upon a group of more than one person. The state argues the new statute only specifically identifies prohibited conduct and does not change the concepts enunciated in the prior decisions.

The now repealed statute, K.S.A. 21-950 (Corrick), prohibited disturbing the peace of "any person"; whereas, the portion of K.S.A. 21-4101 herein involved speaks of conduct that would arouse certain emotions in "others."

A number of jurisdictions have interpreted "persons," "others," and "other persons" to be equally applicable to one person.

In Lane v. Collins, 29 Wis.2d 66, 138 N.W.2d 264 (1965), an action was filed for false arrest after the plaintiff had been arrested for disorderly conduct. The court noted that the fact the abusive language was directed to a policeman and not overheard by others did not prevent it from being a violation of the disorderly conduct statute which prohibited the use of such language in a public place within the hearing of "other persons." See also Hogan v. State, 36 Wis. 226,...