Zimmerman v. State

• Decision Date: 29 September 1943
• Docket Number: A-10218.
• Citation: 141 P.2d 809,77 Okla.Crim. 374
• Parties: ZIMMERMAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

141 P.2d 809

77 Okla.Crim. 374

ZIMMERMAN v. STATE.

No. A-10218.

Court of Criminal Appeals of Oklahoma

September 29, 1943

Syllabus by the Court.

1. In prosecution for grossly disturbing the public peace (21 O.S.1941 § 22), the acts relied upon to prove the commission of a crime must be public in character and such as actually tend to disturb the public peace and quiet.

2. Where accused is prosecuted under statute (21 O.S.1941 § 22) for grossly disturbing the public peace, it is not sufficient to show that he only committed acts which would be a breach of the peace under 21 O.S.1941 §§ 1362 or 1363.

3. A public place is one where all persons have a right to go. NYA home, where several girls live with their teachers and people are not allowed in the home except upon invitation by one of the occupants, is a private place and disturbance therein should be prosecuted as a breach of the peace under 21 O.S.1941 §§ 1362 or 1363 and not under 21 O.S.1941 § 22.

4. Where evidence of state showed that defendant and another went into private home upon invitation of one of occupants and there played a phonograph record and offered literature explaining his religious beliefs, which displeased some of the occupants, but accused said no word and committed no other act, the evidence is insufficient to sustain conviction for grossly disturbing the public peace under 21 O.S.1941 § 22.

Appeal from County Court, McCurtain County; T. G. Carr, Judge.

David Zimmerman was convicted of grossly disturbing the public peace, and he appeals.

Reversed and remanded with instructions to dismiss.

Geo. T Arnett, of Idabel, I. O. Correll, of Atoka, and Hayden C Covington, of Brooklyn, N. Y., for plaintiff in error.

Mac Q Williamson, Atty. Gen., for defendant in error.

JONES Presiding Judge.

The defendant, David Zimmerman, and his brother, Frank Zimmerman, were jointly charged by information filed in the County Court of McCurtain County with the crime of grossly disturbing the public peace. At the close of the state's evidence the court sustained a motion for an instructed verdict of not guilty as to Frank Zimmerman. Upon submission of the case to the jury, as to defendant David Zimmerman, he was found guilty and sentenced to serve thirty days in the county jail and to pay a fine of $100.

An elaborate brief has been filed on behalf of defendant setting up several assignments of error and exhausting the authorities upon the issues involved. No brief has been filed upon behalf of the state and no attempt made to sustain the conviction. Although several propositions of law are presented in defendant's brief, it is only necessary in the disposition of this case to consider the contention that the evidence is wholly insufficient to support the verdict of guilty.

The conviction rests entirely upon the testimony of one witness. Mrs. Olive, supervisor of the NYA project in Idabel, testified that on Sunday, June 12, 1941, she was living next door to the NYA home. That one of her children notified her that there were some Jehovah's Witnesses in the NYA home and that she went into the NYA house to investigate. That the defendant and another man were there with the other man playing a phonograph. That she told them they could not play it there as it was a government project. That neither man made a move to leave; that she then said "Men are not supposed to come in this way," and the man playing the phonograph stated if they had known this they would not have come in and he stopped the record. That defendant then asked to leave some literature and she told them that it could not be left in the home. That the men left. That the NYA home is a private home where about twenty-five girls between the ages of seventeen and twenty-four were living. That she was the supervisor and worked with other ladies at the home teaching the girls how to do certain things that are beneficial. That the project is supported by the United States Government. That she understood that Vannie May Fennell, one of the girls on the project, had opened the door when the men knocked and allowed them to enter. That there were just three girls in the room where the men were playing the phonograph. When asked to detail what was said by the defendant in her presence, the witness answered:

"A. He did not say a word. He just looked at me. He did not make any move to go, until he started, then he asked me if the girls can read. Q. Did he have literature with him? A. He did. He had quite a bundle.

Q. And he asked your permission to give the girls who were working there some of this literature? A. He asked me if they could read. I said yes. Then he asked me if he could give them some of this literature. 'No,' I said, 'They could not on the project. They could take it home but not on the project."'

When the witness was asked by the prosecutor wh...