Town of Torrington v. Taylor

• Decision Date: 25 May 1943
• Docket Number: 2239
• Citation: 137 P.2d 621,59 Wyo. 109
• Parties: TOWN OF TORRINGTON v. TAYLOR
• Court: Wyoming Supreme Court

137 P.2d 621

59 Wyo. 109

TOWN OF TORRINGTON v. TAYLOR

No. 2239

Supreme Court of Wyoming

May 25, 1943

APPEAL from District Court, Goshen County; SAM M. THOMPSON, Judge.

Proceeding by the Town of Torrington against A. W. Taylor for violation of an ordinance prohibiting use of profane language. A conviction in the municipal court was appealed to the district court and tried de novo, and defendant was convicted, and he appeals.

Reversed.

For the appellant there was a brief by Paul B. Lorenz of Cheyenne and Samuel D. Menin of Denver, Colorado, and an oral argument by Mr. Menin.

This is an appeal taken from a conviction on a charge of public disturbance. The complaint fails to charge an offense and the judgment is contrary to the evidence and to law. The court should have declared a mistrial for improper remarks of the prosecutor. There was no evidence of willful disturbance. 11 C. J. S. 819, 822; State v. Fogerson, 29 Mo. 416. No public offense was charged. State v. Jackson (La.) 111 So. 486; State v. Breawx (La.) 47 So. 876; Compton v. State (Ind.) 170 N.E. 325; Alderson v. State (Ind.) 168 N.E. 481; Bennington v. State (Tex.) 291 S.W. 899; Phillips v. State (Okla.) 252 P. 454. The verdict is a nullity, because it found defendant guilty as charged and the complaint did not charge an offense. The evidence was insufficient to prove an offense; the language proven was not profane. Stafford v State (Miss.) 44 So. 801; State v. Wiley (Miss.) 24 So. 194; 1 C. J. S. 405. The petition presented was not offensive. Tainter v. State (Ind.) 154 N.E. 275; McInnis v. State (Ind.) 189 N.E. 521; 24 C. J. S. 1194. The court erred in refusing requested instructions. Lyda v. Cooper (S. C.) 169 S.E. 236; 11 C. J. S. 817. The city attorney was guilty of misconduct in his closing argument. 23 C. J. S. 555. Miller v People, 70 Col. 313. The court should have declared a mistrial.

For the respondent there was a brief by Hal. E. Morris of Torrington and an oral argument by Mr. Morris.

The defendant was convicted in police court and on appeal to district court the conviction was affirmed. The complaint charges an offense under a Torrington ordinance No. 88, Section No. 3. Chapter 22, Article 13 W. R. S. 1931 provides for the creation of Municipal Courts and Section 33-103 R. S. 1931, provides what criminal informations must contain. See also Section 33-104 R. S. 1931. The complaint in this case covers the requirements of Section 33-103 R. S. 1931. The complaint charges an offense. Hull v. State (Ind.) 57 N.E. 72; Kirschbaum v. State (Ind.) 149 N.E. 77, Section 32-412 R. S. 1931, 22 C. J. S. 460; Adair v. State (Okla.) 180 P. 253. The evidence was sufficient to sustain a conviction for public disturbance. Disturbance is a question of fact for the jury in each particular case. 5 Am. & Eng. Ency. of Law, 1st Ed., 723. Complaining witness and his wife were interfered with, in the peaceful enjoyment of their establishment and defendant had to be twice requested to leave. Holcomb v. Cornish, 8 Conn. 375; Gaines v. State, 7 Lea (Tenn.) 410; 2 Am. & Eng. Ency. of Law, 1st Ed., 424. Instructions given by the court were adequate and the refusal of tendered instructions was not error. There was no misconduct on the part of counsel for the town. Shular v. State, 105 Ind. 289; 15 Am. & Eng. Ency. of Law, 1st Ed., 526. The jury was instructed to disregard prosecutor's remarks objected to by the defense. State v. Sorenson, 34 Wyo. 90. This rendered the remarks harmless. See 23 C. J. S. 582. This is a disturbance case and was tried as such and nothing else. The town of Torrington is pestered with peddlers and petition pushers. Ordinances are necessary to preserve the peace to which citizens are entitled.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

These direct appeal proceedings draw in question a judgment and sentence of the District Court of Goshen County, Wyoming. The case was tried de novo in that court as an appeal from the Municipal Court of the town of Torrington, Wyoming. In the court last mentioned, the defendant, A. W. Taylor, was convicted of violating an ordinance of the town aforesaid upon a complaint charging that said defendant "on the 25th day of June in the year of our Lord, 1940, in the Town of Torrington, County of Goshen and State of Wyoming, did unlawfully create a disturbance by approaching public and private places of residence and with profane and abusive language insist on persons signing a petition of questionable character contrary to the ordinance in such case made and provided * * *."

The ordinance of said town under which this prosecution was conducted was numbered 88 and reads:

"Any person, who shall use any obscene, indecent or profane language in any private or public place within the corporate limits of the town of Torrington, to the disturbance or annoyance of any person, family, or neighborhood, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine in any sum not exceeding twenty-five dollars, and shall stand committed to the town jail until such fine and costs of prosecution are paid."

The proof submitted by the town in support of the complaint aforesaid was in substance as follows: The defendant, Taylor, on or about June 25, 1940 entered the place of business of one Wayne Cross, who was engaged in the business of running a cottage camp, so called. This place of business was established for the purpose of renting cabins, selling gasoline, and maintaining a small grocery store in connection therewith. Cross had living quarters in the rear of the store.

When Taylor entered the store there were a couple of its customers present drinking soda water. He was at the time engaged in circulating a petition on behalf of a sect designating themselves "Jehovah's Witnesses," said petition being addressed to the Governor of an eastern state and the Association in charge of the state fair grounds of that commonwealth. It appears by this petition that the Association aforesaid had at first granted permission to the sect above mentioned to hold a convention on the grounds controlled by the Association and thereafter this permission had been revoked. The petition itself embodied a protest against this action and also a request that the Association allow the convention to be held.

Taylor laid several duplicate copies of this petition upon the store counter and requested signatures. The proofs in the case fail to disclose that anything unusual was said at the time Taylor requested that the petition should be signed by the persons present in the store. The store proprietor undertook to examine the petition, but not exactly comprehending its purport he asked Taylor several questions concerning its meaning to which the latter responded with the question, "Can't you read?" Mrs. Cross, the proprietor's wife, who was present also undertook to read the papers submitted and she likewise requested information concerning them and asked Taylor to explain the matter to her. To this request on the part of Mrs. Cross, Taylor said, "Jesus Christ! Can't you read?" Cross thereupon asked Taylor to leave the store and this he did after the request was repeated.

A "Criminal Complaint," as stated above, was shortly thereafter filed in the Municipal Court of the town of Torrington, a warrant was issued for Taylor's arrest, he was tried and found guilty by a jury of six men who rendered a verdict reading, according to the certified copy of the docket entries of the police justice "We, the jurors, find the defendant guilty of violating ordinances 88 and 165." The docket of justice, as certified aforesaid, further states:

"Fine: $ 25.00 on each of two counts. Making $ 50.00 court costs $ 2.50 Jury costs $ 45.00 making in all $ 57.00.

Not having any money Dft was remanded to jail until fine and costs are paid. * * *"

The procedure in taking appeals from the Municipal Court of the town aforesaid to the District Court of Goshen County is required to be "in the manner now provided by laws for appeals from Justices of the Peace" (Section 22-1304 W. R. S., 1931). By Section 33-147 W. R. S., 1931, when an appeal from a Justice of the Peace is taken to the District Court, that officer is directed to "at least ten days before the first day of such term of the district court of the county, file in the office of the clerk thereof, a certified copy of the entries on his docket, together with all the undertakings and papers in the case."

An examination of the papers incorporated in the record at bar in connection with a "certified copy of the entries" appearing on the docket of the police justice discloses that the original verified complaint upon which Taylor was tried in the Municipal Court was not filed in the District Court of Goshen County as required by the statute above quoted. Instead, what appears to be a copy of only a portion of that complaint was filed. This copy seems not even to have been signed by the party who verified the original complaint, but it appears to have all been written in the same handwriting. The signature line to this partial copy of the complaint on file in the Municipal Court presents merely the statement "Signed by F. C. Calhoun." So far as can be determined from the record before us, this man Calhoun evidently was the complaining witness in the case.

From what has been set forth hereinabove, it is clear that Taylor was tried in the District Court without a sworn complaint on file in that court against him. Through his counsel he saved an exception to this condition of the record before the witnesses in the cause gave their testimony. The statute requiring the original papers used in the Justice Court to be filed in the Office of the Clerk...