STATEMENT OF THE CASE
Defendant-appellant, Michael Gebhard, was convicted on December 6, 1984, of disorderly conduct, a Class B misdemeanor, in the Vanderburgh Circuit Court. From a sentence of 180 days, all suspended to probation, and a $200.00 fine plus court costs, he appeals.
We reverse.
STATEMENT OF THE FACTS
This is the second appeal in this case. The Information charging disorderly conduct of which Gebhard was originally convicted was held by us to be too vague to appraise him of the charge against him. Gebhard v. State (1984), Ind.App.,
On February 10, 1984, upon remand, the trial court gave the State seven days to file an Amended Information. On February 17, 1984, the State filed an amended disorderly conduct charge. On February 29, 1984, Gebhard filed a Motion for Discharge under Ind. Rules of Procedure, Criminal Rule 4(C). After taking the matter under advisement, the trial court, on March 9, 1984, overruled the motion. On April 9, 1984, Gebhard filed a Motion to Dismiss the Amended Information alleging that the Information fаiled to state an offense. The trial court overruled the motion on May 21, 1984. After numerous delays and post ponements the trial commenced on December 5, 1984. The following dаy the jury returned a guilty verdict on the disorderly conduct charge. On December 10, 1984, the trial court rendered judgment and sentenced Gebhard to 180 days, all suspended to probation, and finеd him $200.00 plus court costs. Gebhard subsequently filed a timely appeal.
ISSUES
Gebhard alleges a number of errors. However, insomuch as we are reversing, we shall only address the issue of whether the Information failed to allege facts which constitute a public offense as raised in Geb-hard's brief as Issue B(1).
DISCUSSION AND DECISION
At the onset we point out that IND. CODE 35-34-1-6 states that an information is defeсtive if it does not conform to the requirements of IND. CODE 835-34-1-2(a). Subsection (4) of 2(a) requires an information to allege the commission of an offense and to set forth the elements thereof. A ground for a motion to dismiss exists when "the facts stated do not constitute an offense." IND. CODE 835-34-1-4(a). Under subsection (b)(2) a motion to dismiss is timely if filed within 10 days before the omnibus date. ' There is no question hеre that the motion was timely. The supreme court in Brown v. State (1982), Ind.,
The State's Amended charged that: Information
"[Gebhard] did knowingly engage in tumultuous conduct, to-wit: by walking out into the hallway of the apartment house located at 700 Senate Avenuе, in the City of Evansville, County of Vanderburgh, State of Indiana, and displaying a .45 caliber handgun in his hand with the purpose of confronting anyone in the hallway, which conduct was likely to result in serious bodily injury to any person standing in the hallway, all in violation of 1.C. 85-45-1-8(1)."
"Disorderly conduct" is statutorily defined as follows:
"A person who recklessly, knowingly, or intentionally:
(1) engages in fighting or in tumultuous conduct;
(2) makes unreasonable noise and continues to do so after being asked to stop;
(3) disrupts a lawful assembly of persons; or
(4) obstructs vehicular or pedestrian traffic;
commits disorderly conduct, a Class B misdemeanor."
IND. CODE 35-45-1-3.
"Tumultuous conduct" is statutorily defined as follows:
"[Clonduct that results in, or is likely to result in, seriоus bodily injury to a person or substantial damage to property."
IND, CODE 85-45-1-1.
Webster's Third New International Dictionary, p. 460 (14th ed. 1966) defines "tumultuous" as (1) "marked by tumult: full of commotion and uproar: riotous; stormy; boisterous ..." (2) "tending or disposed to cause or incite a tumult ..." (3) "marked by violent and overwhelming turbulence or upheaval...." "Tumult" is defined as (1a) "disorderly and violent movement, agitation or milling about, of a crowd accompanied usually with great uproar and confusion of voices: commotion, turmoil ..." (1b) "a noisy and turbulent popular uprising: disturbance, riot ..." (2a) "a cоnfusion of loud noise and usually turbulent or agitational movement...."
42A Words and Phrases, p. 460 (1952) defines "tumult" as "a promiscuous commotion of a multitude; an irregular violence; a wild commotion. A 'civil commotion,' therefore, requires the wild or irregular action of many persons assembled together." (Citation omitted.)
90 C.J.S., p. 964 (1955) defines "tumult" and "tumultuous" as:
"TUMULT. A promiscuous commotion in а multitude; a wild commotion; an irregular violence. 'Tumults' and 'brawls' have been held to be substantially identical ...
TUMULTUOUS. Boisterous; conducted with disorder; disorderly; noisy; also confused." (Citations omittеd.)
The operative words describing the conduct proscribed in the disorderly conduct statute, in addition to tumultous conduct, are fighting, noise, disrupts, obstructs. IND. CODE 35-45-1-1 categorizes the offense of "disorderly conduct" under the heading of "Offenses Against Public Order," which also includes "rioting" and "flag desecration."
It is a fundamental rule of construction that a statute should be construеd so as to ascertain and give effect to legislative intent. Bowman v. State (1979), Ind.App.,
Through the term "tumultuous conduct" has been defined by IND. CODE 35-45-1-1, that definition, in light of the *48 title to the chapter, the operative words used, the purpose of the act and the legal as well as dictionary definitions, does not obviate physical activity on the part of the defendant, but indeed contemplates physical aсtivity on his part rising to the level that either people are seriously injured or property substantially damaged, or that either is likely to occur.
The Information against Gebhard сharges "tumultuous conduct" under IND. CODE 35-45-1-8(1). Tumultuous conduct is defined as conduct likely to result in "serious bodily injury to a person or substantial damage to property." IND. CODE 35-45-1-1. The Information charges nei ther. Further, it does not charge that the pistol was loaded or that Gebhard possessed it illegally. Finally, it fails to charge that any other person was in the hallway or that he threatеned or menaced anyone. Stripped to its essence, the Information charges that Gebhard walked into an empty hallway, with an unloaded pistol in hand, with the purpose of "confronting anyone in the hallway." (We assume this means a chance encounter, as no particular individuals are designated.) That act, continues the Information, "was likely tо result in serious bodily injury to any person standing in the hallway...."
"Confront" can mean a number of things such as coming face to face with; stand in front of; to face with hostility; oppose defiantly, meet; or encounter. See American Heritage Dictionary of the English Language, p. 280 (1978); see also, Websters Third International Dictionary, p. 477 (1967). None of the definitions of "confront" are necessarily synonomous with tumultuous conduct that results in or likely to result in "serious injury". We know of no crime as "confronting."
Though not articulately stated, we presume that the theory оf the State's case is that Gebhard's presence in the hall with a pistol posed a danger to residents of the apartment house should he encounter them. However, the Infоrmation makes no claim of encounter, threat or injury. Thus, it charges a potential crime or a speculative contingency.
Unless statutorily stated otherwise, it is black lettеr law that in order to constitute a crime "criminal intent must unite with an overt act, and they must concur in point of time." 8 I.L.C. Criminal Law, Sec. 10 (1971). There must be a criminal act or omission as well as criminal intent. Chandler v. State (1895),
Mere presence at the scene is not sufficient for conviсtion. Bond v. State (1971),
Criminal attempt is not charged here. The statute creates an offense only when the defendant "engages in ... tumultuous conduct." (Emphasis added.) The words "engages in" obviously requires present, completed conduct which is likely to injure persons. The Information here charges an offense that may happen, a future act, a contingency, that is, a chance encounter with some person or persons. Walking in an empty hall with a pistol is not tumultuous conduct because it does not rise to the level that persons are immediately likely to be seriously injured. It merely anticipates and suspects future acts, or contingencies. IF persons had ap *49 peared and IF Gebhard had menaced them with a loaded pistol, a different result may have been reached. As the Information is merely a speculation of future acts, it is not actionable.
For the above reasons, this cause is reversed and the trial court is ordered to dismiss the Information.
Judgment reversed.