Stewart v. State

• Citation: 109 P. 243,4 Okla.Crim. 564,1910 OK CR 249
• Parties: STEWART et al. v. STATE.
• Decision Date: 08 June 1910
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

109 P. 243

4 Okla.Crim. 564, 1910 OK CR 249

STEWART et al. v. STATE.

Court of Criminal Appeals of Oklahoma

June 8, 1910

Syllabus by the Court.

It is the exclusive province of the Legislature to declare what shall constitute a crime, but it is the duty of the courts to determine whether a particular act done or omitted is within the intendment of a general statute.

The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result.

Section 2782, Snyder's Comp. Laws Okl., which provides that "every person who willfully and wrongfully commits any act *** which grossly disturbs the public peace or health *** although no punishment is expressly prescribed therefor by this code, is guilty of a misdemeanor," is not void for uncertainty; and whooping and yelling and uttering loud and vociferous language are acts prohibited thereby, if they grossly disturb the public peace.

There are no common-law crimes in this state; but, where the Legislature creates, without defining, an offense which was a crime under the common law, the common-law definition of the crime will be adopted.

Where a motion for a new trial in a criminal case alleged that one of the trial jurors was prejudiced against the defendant, and prior to the trial had stated that the defendant was guilty and should be convicted, which fact was unknown to the defendant or his counsel until after the trial, and which allegation is supported by the affidavit of the person to whom the juror is alleged to have made the statement, such allegation thus supported by affidavit tenders an issue which the prosecution should meet and the court should try out and, if no counter showing is made by the state, the allegation will ordinarily be taken as true.

Where the accused testifies in his own behalf and admits his guilt under oath, a new trial should not be granted on account of the prejudice of a trial juror.

(Additional Syllabus by Editorial Staff.)

A breach of the peace is a violation of public order or decorum; the offense of disturbing the public peace. By "peace" is meant the tranquillity enjoyed by the citizens of a municipality or community, where good order reigns among its members.

Appeal from Cleveland County Court; N.E. Sharp, Judge.

Fred Stewart and others were convicted of disturbing the public peace, and bring error. Affirmed.

Williams & Williams and S. A. Horton, for plaintiffs in error.

Chas West, Atty. Gen., Chas. L. Moore, Asst. Atty. Gen., and George G. Graham, Co. Atty., for the State.

RICHARDSON J.

The information in this case charged that the plaintiffs in error did "unlawfully, willfully, and wrongfully commit divers acts of yelling, hollering, and uttering loud and vociferous language, thereby grossly disturbing the public peace of said community." The information was drawn under running section 2650, Wilson's Rev. & Ann. St. 1903 (section 2782, Snyder's Comp. Laws), which reads as follows: "Every person who willfully and wrongfully commits any act which *** grossly disturbs the public peace or health, *** although no punishment is expressly prescribed therefor by this chapter is guilty of a misdemeanor." We are met at the threshold of our consideration of this case by the contention that this statute is void for uncertainty; that the Legislature, and not the courts, must declare what acts are criminal; and that it cannot be left to the court or the jury trying the cause to determine what acts do or do not constitute an offense. In support of this contention it is urged that there are no common-law crimes in this state, for the reason that our statutes (Snyder's Comp. Laws, § 2019) provide that "no act or omission shall be deemed criminal or punishable except as prescribed or authorized by the statutes of this state," and that, therefore, the common law cannot be resorted to for the purpose of supplying the omissions or correcting the uncertainties of the act in question. Also, there is cited the case of Jennings v. State, 16 Ind. 335, where it is held that a statute declaring it an offense for any person to be guilty of public indecency creates no crime, for the reason that the term "public indecency" is not defined by the act, and has no fixed legal definition. We are also referred to the case of Hackney v. State, 8 Ind. 494, where it is held that there are no common-law crimes in Indiana; that the courts cannot look to the common law for the definition of a crime created but not defined by the Legislature; and that an act prohibiting the maintenance of a common nuisance and prescribing a punishment therefor creates no crime, in that it fails to provide what shall constitute a public nuisance. We find, however, that those cases have been overruled by the Supreme Court of Indiana.

That it is the exclusive province of the Legislature to declare what shall constitute a crime, and that neither the court nor the jury have any such power, is undoubtedly true. But the statement of that fact alone furnishes no answer to the question raised. Ordinarily the Legislature speaks only in general terms, and for that reason it often becomes the duty of the court to construe and interpret a statute in a particular case for the purpose of arriving at the legislative intent, and of determining whether a particular act done or omitted falls within the intended inhibition or commandment of such statute. And the lawmaking power in this state has laid down for the courts in section 2027 Snyder's Comp. Laws Okl., a rule for the construction of criminal statutes, as follows: "The rule of the common law that penal statutes are to be strictly construed has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." Section 2020, Snyder's Comp. Laws Okl., defines a crime or public offense in substance to be an act or omission forbidden by law to which a punishment is annexed upon conviction. Now, in creating an offense the Legislature, we apprehend, may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces or is reasonably calculated to produce a certain defined or described result. As one instance of the former, it is made an offense by our statutes for any person to carry concealed on or about his person, saddle, or saddle bags any pistol, revolver, bowie knife, etc. That is a certain described act. The result of the act is immaterial, and the offense can be committed only by doing the certain act, namely, carrying one of the prohibited weapons concealed about the person, or about one's saddle or saddle bags. On the other hand, let us examine the law defining murder. Under our statutes (section 2268, Snyder's Comp. Laws Okl.) murder is the killing of one human being by another in the following cases: "(1) When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed or of any other human being. (2) When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. (3) When perpetrated without any design to effect death by a person engaged in the commission of any felony." Here no particular act is defined or described. Any act, whatever it may be, done under the circumstances stated, and which produces a certain result, namely, the death of a human being, is denounced as murder. Under the first subdivision, it may be committed by shooting, stabbing, striking, hanging, burning, drowning, poisoning, or by any other act which is capable of producing the death of a human being. It may even be committed by a parent by willfully starving his child, or by abandoning it so that it die. And the same is true of the second subdivision of the definition of the crime--any act done which is imminently dangerous to others and evinces a depraved mind, regardless of human life, and which results in death is murder, even though there be no actual intent to injure any one. Section 2272, Snyder's Comp. Laws. And the same may be said of the general definitions of manslaughter in both the first and second degree. The Legislature does not undertake to describe the act or acts by which any of the degrees of unlawful homicide may be committed. It makes unlawful any act committed under the circumstances stated, and which produces the death of a human being. This is true, also, of many other of our statutes creating crimes and offenses. The statutes of many of the states defining murder and manslaughter, as well as many other crimes, are almost identical with ours; and yet we have never heard the validity of any of these statutes questioned. And, if they are valid, we can see no reason why the statute under which this prosecution was instituted and carried on is not good. If the statute in question is void for uncertainty because the Legislature failed to enumerate or describe the particular acts constituting it, then what can be said of the statutory definition of murder, and especially the second subdivision thereof, which says that homicide is murder "when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual"? The statute under consideration says that "every person who willfully and wrongfully commits any act which grossly disturbs the public peace is guilty of a misdemeanor." Is one any more uncertain...