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APPEAL by defendant from a judgment of the District Court for Graham
County (Sparks, J.) convicting him of a breach of the peace. Affirmed.
The facts are stated in the opinion of the court.
Messrs. John R. Parsons and Mahin

& Bennett, for appellant:

To constitute the offense of disturb

ing the peace the person must not only

be disturbed by the acts of the defendant, but must be wilfully disturbed.

Leicester v. Hoadley, 66 Kan. 174, 65 L.R.A. 523, 71 Pac. 318.

Under the statute the complaint may be amended after the case is appealed to the district court, but where a material amendment is made the complaint should be verified.

State v. Goetz, 65 Kan. 130, 69 Pac. 187.

Messrs. C. B. Griffith, Attorney General, Roland Boynton, Assistant Attorney General, James O. McVey, W. L. Sayers, and J. S. Parker, for appellee:

The defendant went to trial without attacking in any manner the sufficiency of the complaint, thereby waiving any defect therein as to verifications. State v. Blackman, 32 Kan. 615, 5 Pac. 173.

Johnston, Ch. J., delivered the opinion of the court:

Fred Hebert appeals from a judgment of conviction rendered upon a charge of a breach of the peace. The prosecution was instituted before a justice of the peace by the filing of a complaint and the issuance of a warrant charging that on November 20, 1924, the defendant unlawfully disturbed the peace and quiet of I. O. Miller. A trial there resulted in a conviction, and the defendant took an appeal to the district court. There he was again convicted, and he brings the case here, alleging a number of errors, one of which is that the state was permitted to amend the complaint by adding the word "willfully" so

as to charge the defendant with a willful and unlawful breach of the peace. It is also stated that the complaint was not reverified after

the amendment. The statute under which he was convicted provides: "Every person who shall wilfully 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.' Rev. Stat. § 21-950.

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(121 Kan. 329, 246 Pac. 507.)

There was testimony too that at another time he had said to a neighbor that if he ever caught Miller and his brother out he "would beat them damned near to death," and this statement was brought to the attention of Miller. A threat which tends to produce violence, provoke others to a breach of the peace, and causing alarm, is an invasion of the peace and security which the law affords a citizen, and constitutes a violation of the statute. 9 C. J. 387. The insulting language and threats, as shown in the evidence, were calculated to disturb the peace of Miller, and he testified that that was its effect.

Considerable is said about the acts of Miller which tended to provoke the unlawful acts of the defendant, but there was a denial of any such provocation.

There is a criticism of the instructions given, but we find no merit in it.

One ground of the motion for a new trial was newly discovered evidence which could not be produced at the trial. An examination of the purposed evidence

shows that it was Appeal-in

structions.

not material material and did not afford any ground for setting aside the verdict.

It is urged that the punishment imposed was excessively severe for the offense. The penalty provided by statute is a fine not exceeding $100, or imprisonment in the county jail not exceeding three months. The punishment imposed was a jail sentence of twenty days, and a requirement that he furnish a bond in the sum of $500 to keep the peace, and in that connection the court made an order of parole as to the jail sentence. Obviously there is no ground to complain that the punishment is excessive.

Judgment affirmed.

All the Justices concur.

ANNOTATION.

Words as criminal offense other than libel or slander,
[Criminal Law, § 1.]

I. At common law or under statute not specifying words:

a. In general, 84.

b. As blasphemy, 85.

c. As breach of peace, 85.

d. As disorderly conduct, 87.

e. As nuisance, 89.

IL Under statute specifying words:

a. In general, 89.

b. Statute specifying threatening, quarreling, challenging, etc., 90.

c. Statute specifying words calculated or tending to cause a breach of the peace, 91.

d. Statutes specifying vulgar, profane, insulting, etc., words:

1. In general, 95.

2. In presence of female, 96.

3. In public places, 98.

4. Family residence or neighborhood, 99.

As to abusive language addressed to trespasser as breach of peace, see the annotation in 34 A.L.R. 575 [Breach of Peace, § 3].

As to opprobrious words addressed to policeman as breach of peace, see

the annotation in 34 A.L.R. 566 [Breach of Peace, § 3].

As to abusive or insulting language addressed to group as breach of the peace, see the annotation in 34 A.L.R. 580 [Breach of Peace, § 3].

I. At common law or under statute not specifying words.

a. In general.

This annotation is confined to cases in which the offense charged consists wholly in the use of objectionable language, exclusive of the cases involving criminal libel, statutory defamation, and the like.

It would seem well settled that in the absence of immediate and present violence, the use of mere opprobrious words was not considered at common law as an indictable offense.

Thus, under a motion for a criminal information, it was held in Ex parte Marlborough (1844) 5 Q. B. 955, 114 Eng. Reprint, 1508, that imputing corruption to the character of a magistrate in a public speech could not be made the subject of a criminal information. The court said: "It is clear upon all the authorities that words merely spoken are not the subject of a criminal information. The exception is in those cases where the words amount to a provocation to break the peace, by their inciting either to personal violence or to a challenge."

And in Reg. v. Langley (1704) Holt, K. B. 654, 90 Eng. Reprint, 1261, under a similar indictment, Holt, Ch. J., said: "Where words directly tend to the breach of the peace, as, if one man challenge another, etc., it is indictable; but for these petit offenses, that are contra bonos mores, the law has another provision, by requiring surety for the peace and good behavior."

So, in Ex parte Chapman (1836) 4 Ad. & El. 773, 111 Eng. Reprint, 974, which was a motion to show cause why a criminal information should not issue against a person who had abused a magistrate in the presence of others, it was held that such was not an indictable offense, where it was not alleged that there was intent to provoke a breach of the peace.

Also, a recognizance for good behavior is not forfeited by the mere use of words of heat and intemperance, and evil words which do not tend to the terror of anyone, or to a breach of the peace. Rex v. Heyward (1638) Cro. Car. 498, 79 Eng. Reprint, 1030.

And in State v. Schlottman (1873) 52 Mo. 164, it was held that the mere disturbance of one individual by the use of loud and abusive language is not a legal offense, the court saying: "The conduct of the defendant in using the language he did, and in the manner indicated, was very immoral and reprehensible. It was not, however, such an offense as is denounced by the law as criminal, and which would, under our statute, subject the offender to a criminal prosecution. He, no doubt, would be liable to a civil action for slander, but I know of no statute rendering such conduct criminal. There is a statute against disturbing the peace of families or neighborhoods, but none against disturbing the peace of a single individual by the use merely of loud and abusive language."

And a complaint charging the defendant with wilfully and maliciously, and with intent to disturb the peace, using vulgar, profane, and indecent language in the presence and hearing of a man and his family, and especially his daughter, with intent that they should hear the same, was held not to charge any statutory crime or offense defined under the criminal laws of Pennsylvania. Com. v. Kane (1916) 65 Pa. Super. Ct. 258.

So, in an early Pennsylvania case, Com. v. Edwards (1831) 1 Ashm. (Pa.) 46, an indictment charging the prisoner with the frequent practice of going to a house and grossly abusing a family, so as to make their lives extremely uncomfortable, was held not to charge an indictable defense.

Likewise, in State V. Benedict (1839) 11 Vt. 236, 34 Am. Dec. 688, although the prosecution was under a statute, the court remarked: "Whatever was once thought upon the subject, it is now well settled that mere threats, in words not written, is not an indictable offense at common law."

In Bell v. State (1851) 1 Swan (Tenn.) 41, the utterance of obscene and vulgar words in public was held to be indictable at common law, as having a tendency to corrupt the morals of society and to provoke violence and bloodshed.

b. As blasphemy.

As to blasphemy as an offense, see the annotation in 14 A.L.R. 880. No additional cases have arisen since that annotation.

c. As breach of peace.

For cases involving a charge of breach of the peace under statutes specifying words, see infra, II.

In general terms, a breach of the peace is a violation of public order, a disturbance of public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace. 8 R. C. L. 284. The present question is whether such conduct may be predicated on the use of words, apart from other conduct amounting to the offense.

Under an indictment charging the utterance of profane, vile, abusive, and insulting words in the presence or hearing of others, which in their common use and application were calculated to cause a breach of the peace, it was held in State v. Steger (1923) 94 W. Va. 576, 34 A.L.R. 570, 119 S. E. 682, that abusive and insulting language, unless accompanied by some immediate present violence, was not indictable at common law as a breach of the peace.

So, in Ware v. Loveridge (1889) 75 Mich. 488, 42 N. W. 997, the court was of the opinion that it was not a breach of the peace at common law for the defendant to enter the house of the prosecutor and there utter obscene language concerning another not present, the court being of the opinion that all cases not involving open disturbances in public places, and the actual annoyance of the public at large, or persons employed and actually engaged in public functions, require personal violence, either actually inflicted or immediately threatened, to constitute a breach of the peace at common law. Champlin, J., with whom concurred Campbell, J., was not prepared to say that insulting and abusive language used towards one in the presence of his family may not come within the definition of a breach of the peace at common law; while Sherwood, Ch. J., in a dissenting opinion, was of

the opinion that conduct which, if permitted on the public streets, would have been a breach of the public peace, would also be a breach of the public peace when committed in the home of a family, where the consequences would seem to be of a far more serious character.

And in State v. Taylor (1856) 3 Sneed (Tenn.) 662, an indictment for publicly and in the presence of other citizens uttering and publishing the following words, with the intent to provoke another to a breach of the peace, "Lord Bulldog Bogle is a liar himself, and induces others to swear lies for him by any means whatever," and accusing him of getting other persons to swear to a lie for him, was quashed, the court quoting Blackstone to the effect that "mere words, such as calling a man a liar or a knave, are not necessarily criminal."

However, it has been held, independent of statute, that the use of vile or abusive language towards another in a public place has such a tendency to disturb the public peace that it is indictable as a breach of the peace. Laur v. State (1910) 94 Ark. 178, 126 S. W. 840; State v. Appleton (1904) 70 Kan. 217, 78 Pac. 445; Com. v. Silvers (1892) 1 Pa. Dist. R. 281; Com. v. Redshaw (1892) 12 Pa. Co. Ct. 91; Cohen v. Huskisson (1837) 2 Mees. & W. 477, 150 Eng. Reprint, 845.

Thus, where the action was for false imprisonment, in Cohen v. Huskisson (Eng.) supra, where the evidence showed that the plaintiff, after abusing the defendant in his shop, went into the street and there continued to abuse him in the presence of a crowd of people, whereupon the defendant sent for the police and had the plaintiff arrested, it was held that the facts amounted to a breach of the peace and justified the defendant in directing the imprisonment, Lord Abinger, C. B., saying: "The uttering of the abusive words imputed to the plaintiff, abstractly speaking, undoubtedly, would not make it so; but if they are SO uttered, and in such a place, as to attract a crowd of a hundred persons, and when that crowd is collected the party continues to use the same abu

sive language, nobody can tell whether the passions of the crowd may not be thereby inflamed, and whether they may not proceed to execute the vengeance which the party himself invokes and threatens."

And in Laur v. State (Ark.) supra, it was held that a person who approaches another in front of the latter's place of business, and begins to curse and abuse him and make demonstrations as if to strike him, is guilty of a breach of the peace.

So, in Com. v. Silvers (1892) 1 Pa. Dist. R. 281, a striker lingering about a business place at which a strike was directed, who interfered with those who filled the vacant positions by hooting at them and calling them "scabs," was held to have so interfered with other members of society that he was likely to have created a disturbance, and had, therefore, violated the law in that his conduct tended to create a breach of the peace. See also Com. v. Redshaw (1892) 12 Pa. Co. Ct. 91.

Likewise, a preacher was held guilty of a breach of the peace at common law, in using before a congregation of men, women, and children assembled for public worship, obscene language of a character calculated to insult his hearers and provoke an assault, although his intention was merely to rebuke the sin of impurity, with no intention to disturb or embarrass anyone. Delk v. Com. (1915) 166 Ky. 39, L.R.A.1916B, 1117, 178 S. W. 1129, Ann. Cas. 1917C, 884.

Where the accused was charged with the statutory offense of being a common railer and brawler, it was held in Com. v. Foley (1868) 99 Mass. 497, that if the defendant, in his own dwelling house, was in the habit of using loud and violent language, consisting of opprobrious epithets and exclamations, in such a manner as to attract crowds of persons passing and living in the neighborhood, on Sundays as well as other days, and in the night as well as in the daytime, he was a disturber of the public peace.

Under the general statutes directed against a breach or disturbance of the peace, it has very generally been held that, under certain circumstances,

words of a certain character may amount to a disturbance or breach of the peace. Topeka v. Heitman (1892) 47 Kan. 739, 28 Pac. 1096; STATE v. HEBERT (reported herewith) ante, 81; Stewart v. State (1910) 4 Okla. Crim. Rep. 568, 32 L.R.A. (N.S.) 505, 109 Pac. 245.

Thus, in Topeka v. Heitman (Kan.) supra, in sustaining a conviction of a person who had used loud, profane, and indecent language, under a statute providing for the punishment of any person who shall disturb the quiet of the city, the court said: "The peace may have been disturbed by loud talk alone. But we also think to call a man 'a damn fool and a bastard' is the use of indecent language, and the peace of the city may have been disturbed by the use of such language."

And under a statute providing that every person who shall wilfully disturb the peace and quiet of any person, family, or neighborhood shall, upon conviction, be fined, it was held in the reported case (STATE v. HEBERT, ante, 81) that abusive language and threats of violence would amount to a breach of the peace, although no personal violence was employed.

So, in a prosecution under a statute providing that every person who wilfully and wrongfully commits any act which grossly disturbs the public peace or health is guilty of a misdemeanor, it was held that whooping and yelling, and uttering loud and vociferous language, are acts prohibited by such statute, if they grossly disturb the public peace. Stewart v. State (1910) 4 Okla. Crim. Rep. 564, 32 L.R.A. (N.S.) 505, 109 Pac. 243.

And in People v. Nesin (1917) 179 App. Div. 869, 167 N. Y. Supp. 49, under a statute making any act which seriously disturbs or endangers the public peace a misdemeanor, a person who opened an outdoor meeting at a crowded street corner by an appeal against the war, declaring to those gathered: "You men that are listening to me, you must not obey the laws of Congress in this matter of conscription; you must not take up arms against Germany, as Germany is a friendly nation to us," was held to

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