GREGORY HESS v. STATE OF INDIANA.
No. 1271S372
Supreme Court of Indiana
May 22, 1973
257 Ind. 651 | 297 N.E.2d 413
Theodore L. Sendak, Attorney General, Darrel K. Diamond, Deputy Attorney General, for appellee.
GIVAN, J.—This is an appeal by Gregory Hess from a conviction for disorderly conduct. Hess was tried in City Court of Bloomington without a jury and found guilty. He ap-
The stipulation to the evidence discloses the following:
Early in the afternoon of May 13, 1970, units of the Monroe County Sheriff‘s Department and the Bloomington City Police were summoned to aid Indiana University officials and campus police in removing certain demonstrators who had been blocking the doors of Bryan Hall in conjunction with protests against the war in Indochina. At that time there were some 200 to 300 persons assembled in front of the Hall. In the course of the police activity, two of the demonstrators were placed under arrest and put in a patrol car, at which time 100 to 150 of the persons present went into the street in front of the Hall in an effort to block the progress of the patrol car. It was then necessary for the police officers to clear the street of such persons to permit the passage of the car. When they did not respond to the verbal directions of the police, it was necessary for the officers to forcefully remove the persons from the street.
While in the process of removing the demonstrators from the street, Monroe County Sheriff Thrasher heard appellant say in a loud voice, while in a position with his back to the police and facing the bulk of the demonstrators, one of the following two phrases: “We‘ll take the fucking street later,” or “We‘ll take the fucking street again.” Two female witnesses heard appellant use the phrase in a loud voice but testified that he did not appear to be exhorting the crowd to go back into the street.
Appellant first argues that
“Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars [$500] to which may be added imprisonment for not to exceed one hundred eighty [180] days. [Acts 1943, ch. 243, § 1, p. 685; 1969, ch. 161, § 1, p. 329.]”
It is appellant‘s contention that as he was exercising his right of free speech, the statute cannot be applied to him, unless his speech: (1) is obscene within the standard of Roth v. United States (1957), 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498; (2) amounts to fighting words within the meaning of Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031; (3) amounts to a public nuisance in that privacy interests are invaded; or (4) advocates law violation or use of force and is directed to produce imminent lawless action and is likely to do so. Cohen v. California (1971), 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284.
Focusing on the last of these criteria, appellant argues that the State did not show a “clear and present danger” of violence. Terminiello v. City of Chicago (1949), 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131. The Supreme Court has recently revised its formula for determining when a statute infringes upon the right of free speech. In Brandenburg v. Ohio (1969), 395 U.S. 444, 447-448, 89 S. Ct. 1827, 1829, 23 L. Ed. 2d 430, 434, the Court said:
“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
In Whited v. State (1971), 256 Ind. 386, 269 N. E. 2d 149, 152, 25 Ind. Dec. 438, 442, this Court followed a similar concept requiring a “tendency to lead to violence.”
Appellant also argues that the record is devoid of any evidence that could serve to bring appellant‘s conduct within any permissible application of the statute. In this argument appellant contends that: (1) he spoke no more loudly than others at the scene; (2) the neighborhood was disturbed before he spoke; (3) his words were not offensive; and (4) his language did not constitute “fighting words.” That others were acting in a loud manner and that the area was already disturbed are of no import. The participation of others relates only to their guilt, not to the appellant‘s. Although the vocabulary appellant used was tasteless and moronic, it has nothing to do with whether the evidence shows disorderly conduct. If the word is stricken from the evidence, the record still abundantly supports the finding of the trial court. As above noted under the circumstances, the trial court was justified in finding that appellant‘s statement did violate the statute.
Appellant next argues that
A penal statute is overbroad if its sanctions are applicable to activities that are protected by the constitution. Grody v. State (1972), 257 Ind. 651, 278 N. E. 2d 280, 29 Ind. Dec. 214. Appellant argues that his right to free speech is curtailed by the statute in question. This Court has previously held, however, that in cases of pure speech, this statute can only be applied if the speech has a tendency to lead to violence. Whited, supra; Miller v. State (1972), 258 Ind. 79, 279 N. E. 2d 222, 29 Ind. Dec. 398. Thus interpreted, the statute does not infringe upon the right to free speech, and is not overbroad.
Appellant lastly argues that the form affidavit used failed to give him notice of the charge against him. Appellant filed a motion to quash in the city court where it was overruled. Apparently, a new motion to quash was not filed in Superior
“The issues raised on this appeal are as follows: 1. Whether the judge of the City Court erred in overruling defendant‘s motion to quash the affidavit. . . .”
The Superior Court did not understand that statement to serve as a refiling, apparently, for there is no ruling on the motion.
Appeals from justice of the peace courts and city courts to the circuit or superior courts have long been recognized as trials de novo. They are not a review of the proceedings had before the inferior court. Hensley v. State (1969), 251 Ind. 633, 244 N. E. 2d 225, 16 Ind. Dec. 479. Thus, no issue is presented for this Court‘s consideration.
The trial court is affirmed.
Arterburn, C.J., concurs; Prentice, J., concurs with opinion in which DeBruler, J., concurs; Hunter, J., dissents with opinion.
CONCURRING OPINION
PRENTICE, J.—Although I dissented in the case of Whited v. State (1971), 256 Ind. 386, 269 N. E. 2d 149, my dissatisfaction therein was not with the statement of the law by the majority but rather with its application to the facts of that particular case. In the case at bar, the evidence discloses to me that the conduct of the appellant was illegal, as tested by the standards of that case and also by the “clear and present danger” test of Brandenburg v. Ohio (1969), 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 and Terminiello v. Chicago (1949, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 and the “immediate threat” test of the most recent case of Gooding v. Wilson (1972), 405 U.S. 518, 31 L. Ed. 2d 408. The acts or words complained of must be viewed within the context of the circumstances that surrounded them. “The probable and natural consequences of the conduct is the important element.” Whited v. State (Dissenting Opinion) supra, citing State v.Korich (1949), 219 Minn. 268, 17 N. W. 2d 497. The crowd was volatile and the police officers under stress.
“Thus, when a policeman is in the proper performance of his duty and another by conduct set forth in the statute and which is calculated to be, or is reasonably likely to be offensive to him, such conduct would be disorderly within the intent of the statute, if it is probable and natural that the consequences will be to divert or interfere with or limit his effective functioning and thereby create, contribute to, or foster the continuance of a disturbance to the peace and quiet of any neighborhood or family. While it is to be hoped that, among other desirable qualities, our policemen will have an extraordinarily high degree of emotional stability, we nevertheless are not justified in presuming such. We will remember that they labor under difficult and often exasperating circumstances, and we cannot ascribe to them a tolerance or boiling point higher than that of the ordinary man. Further, we have a right to expect him to be professionally competent and will presume him to be so. Therefore, if he clearly oversteps the boundaries of proper police action, he will be presumed to have done so with knowledge of the same and a wilful disregard of the rights and sensitivity of the assailed. Under such circumstances, he as the offender, is entitled to no greater degree of civility than any other person and responsible for the probable and natural consequences. This is not to say that every miscue of a policeman will justify provocative conduct by the person thereby offended or inconvenienced. The tests are whether or not the action which provoked the assault was, under the circumstances, such as would be acceptable of a professionally competent policeman, and whether or not such action, under the circumstances, would incite the anger of a person of ordinary emotional stability. If the answer to the first question is ‘No’ while the answer to the second question is ‘Yes‘, the probable and natural consequences will be held to be the conduct of the policeman. If, however, the answer to the first question is ‘Yes’ or if the answer to the second question is ‘No‘, the policeman‘s action will not be held to justify conduct calculated to be, or reasonably likely to be offensive to him or to incite others to be offensive to him.” Whited v. State (Dissenting Opinion) supra, 269 N. E. 2d at 155.
As to the majority‘s view, as written by Justice Givan, I believe that a trial de novo is not a review of the proceedings
DeBruler, J., concurs.
DISSENTING OPINION
HUNTER, J.—I must respectively dissent. Neither my reading of the facts nor my understanding of First Amendment, and cases interpreting the First Amendment, coincide with that of the majority.
First, it is necessary to state where I believe the majority has misconstrued the record. The majority states that when the demonstrators failed to clear the street at the verbal direction of the police, it was necessary for the officers to forcefully remove them. However, there is no indication in the record that physical force was required. The record does say, and I quote:
“When they [the demonstrators in the street] did not respond to verbal directions, Sheriff Thrasher and his deputies began walking north on Indiana Avenue from 4th Street toward Kirkwood Avenue to clear the street for automobile traffic. The persons who were in the street then moved to the curbs on either side of Indiana Avenue, joining the large number of spectators that had gathered along both sides of the street.”
Neither in this statement nor anywhere else in the record is there any evidence that the police were required to use force to clear the street.
“According to Sheriff Thrasher, he heard Hess use the word “fuck” in a loud voice and he immediately arrested him for disorderly conduct. He said that this was the first time he had heard that word used on the particular occasion.”
Although it was later established in court that appellant did say one of the above described phrases, there is no evidence in the record that the officers heard the entire phrase. The evidence shows only that Sheriff Thrasher heard appellant use the offensive word and arrested appellant for using that offensive word. The evidence showed that others were using similarly distasteful modifiers, but that the people in the crowd were not offended by the foul language.
As to the law, the majority is confused. They state that Brandenburg has modified the “clear and present danger” test established in Terminiello. A reading of the two tests indicates that they are practically synonomous. Brandenburg protects the advocacy of law violation “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis added) 395 U.S. at 447. The word “imminent” is defined as “ready to take place; near at hand; impending; hanging threateningly over one‘s head; menacingly near.” Webster‘s Third International Dictionary. It thus seems clear that Brandenburg did not modify the “clear and present danger” test, but merely stated it another way.
The majority then holds that the test established in Whited (with pure speech there must be a “tendency to lead to violence“) is the same test as Brandenburg. This is simply not the case. Brandenburg would require that the speech be likely to lead to imminent or immediate violence. Requiring only a tendency and not requiring some immediate threat fails
The majority characterizes the words of the appellant as being a challenge to fight the police. The majority thus seems to be saying that these are “fighting words” under the doctrine established in Chaplinsky v. New Hampshire, supra. However, the evidence shows that appellant had his back to the policeman and his statement was not directed at anyone in particular. Sheriff Thrasher testified that he was offended by Hess, but did not interpret the expression as being directed personally at him.
The other apparent basis for the majority‘s holding is that appellant‘s statement was intended to incite further lawless actions on the part of the crowd. Under Brandenburg the speaker must intend to incite imminent lawless action and the words must be likely to incite imminent lawless action. Nothing in the record indicates that either of these elements was present. In fact, there is uncontroverted evidence demonstrating the opposite. The evidence shows that appellant was not exhorting the crowd and that his statement was not addressed to any particular person or group. The record contains no evidence that Sheriff Thrasher felt threatened or
It should also be noted that the Superior Court judge based his finding of guilty upon his conclusion that appellant‘s speech would have a “tendency to lead to violence.” He was apparently basing this on the test established in Whited. I do not criticize the judge, because, at that time, Whited was the latest statement of the law. However, as noted hereinbefore a mere tendency to lead to violence is not sufficiently narrow to prevent intrusion upon constitutionally protected free speech. Gooding v. Wilson, supra. The trial judge did not find that the words would likely lead to immediate violence. If the majority is merely affirming the finding of the trial judge, they are affirming an unconstitutional standard. If the majority is holding that the words were likely to lead to immediate violence or immediate lawless activity, they are going beyond the finding of the trial court and making a holding which the record simply will not support.
The majority attempts to narrow the statute to prevent problems of vagueness and overbreadth.
Although distinct, the concept of overbreadth is somewhat related to vagueness in that an overly broad statute infringes upon an individual‘s right to free speech protected by the First Amendment in much the same way as does a vague statute. There are two different problems with an overly broad statute. First, it invites arbitrary application by law enforcement officials, and secondly, it can have the effect of discouraging the exercise of free speech, free movement and assembly. See Coates v. City of Cincinnati, supra.
The fact that the statute on its face might appear overly broad does not immediately make the statute unconstitutional. The United States Supreme Court has urged state courts to give narrowing constructions to statutes which might otherwise invade protected rights. See Gooding v. Wilson, supra, 405 U.S. at 518, 31 L. Ed. 2d at 413. We therefore can narrow the application of the statute without holding it unconstitutional.
“[N]o person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof . . .” 408 U.S. at 107, 33 L. Ed. 2d at 227.
When determining whether this ordinance was vague, the United States Supreme Court said:
Although the question is close, we conclude that the anti-noise ordinance is not impermissibly vague. The court below rejected appellant‘s arguments ‘that proscribed conduct was not sufficiently specified and that police were given too broad a discretion in determining whether conduct was proscribed.’ 46 Ill. 2d 492, 494 (1970). Although it referred to other, similar statutes it had recently construed and upheld, the court below did not elaborate on the meaning of the anti-noise ordinance. In this situation, as Justice Frankfurter put it, we must ‘extrapolate its allowable meaning.’ Here, we are ‘relegated to the words of the ordinance itself,’ to the interpretations the court below has given to analogous statutes, and, perhaps to some degree, to the interpretation of the statute given by those charged
with enforcing it. ‘Extrapolation,’ of course, is a delicate task, for it is not within our power to construe and narrow state laws. “With that warning, we find no unconstitutional vagueness in the anti-noise ordinance. Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by ‘flexibility and reasonable breadth, rather than meticulous specificity,’ Esteban v. Central Missouri State College, 415 F. 2d 1077, 1088 (CA 8 1969) (Blackmun, J.) cert. denied, 398 U.S. 965 (1970), but we think it is clear what the ordinance as a whole prohibits. Designed, according to its preamble, ‘for the protection of Schools,’ the ordinance forbids deliberately noisy or diversionary activity which disrupts or is about to disrupt normal school activities. It forbids this willful activity at fixed times—when school is in session—and at a sufficiently fixed place—‘adjacent’ to the school. Were we left with just the words of the ordinance, we might be troubled by the imprecision of the phrase ‘tends to disturb.’ However, in Chicago v. Meyer, 44 Ill. 1, 4 (1969), and Chicago v. Gregory, 39 Ill. 2d 47 (1968), reversed on other grounds, 394 U.S. 111, 22 L. Ed. 2d 134, 89 S. Ct. 946 (1969), the Supreme Court of Illinois construed a Chicago ordinance prohibiting, inter alia, a ‘diversion tending to disturb the peace,’ and held that it permitted conviction only where there was ’imminent threat of violence.’ (Emphasis supplied.) See Gregory v. Chicago, 394 U.S. 111, 116-117, 121-122, 22 L. Ed. 2d 134, 138, 139, 141, 142, 89 S. Ct. 946 (1969) (Black, J., concurring). Since Meyer was specifically cited in the opinion below, and it in turn drew heavily on Gregory, we think it proper to conclude that the Supreme Court of Illinois would interpret the Rockford ordinance to prohibit only actual or imminent interference with the ‘peace or good order’ of the school.
“Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute‘s announced purpose that the measure is whether normal school activity has been or is about to be disrupted. We do not have here a vague, general ‘breach of the peace’ ordinance, but a specific statute for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school. Given this ‘particular context’ the ordinance gives ‘fair notice to
whom [it] is directed.‘” 408 U.S. at 109-110, 33 L. Ed. 2d at 228-230 (emphasis added in final paragraph). (Footnotes omitted)
The reason the ordinance was upheld was because it was tied directly to schools and was not a general and inadequately limited breach of the peace statute. The Court noted trouble with “tends to disturb” but permitted the language because Illinois will convict only where there is an “imminent threat of violence.” From a reading of Gooding v. Wilson, supra, and Grayned v. City of Rockford, supra, it is clear that the majority in the case at bar has failed to sufficiently narrow the statute. The anti-noise interpretation is both too vague and too broad. It does not sufficiently warn a person what actions are proscribed. It invites arbitrary enforcement and infringes upon constitutionally protected free speech. Since the sheriff arrested appellant for using offensive language and not because of any threat of violence, it is clear that the statute was arbitrarily applied by law enforcement officials in this case. In both Gooding and Grayned, the Court indicated that a mere tendency to lead to violence was not a sufficient narrowing of a breach of the peace statute. Subsequent to Gooding v. Wilson, supra, the Supreme Court of the United States has, in memorandum opinions, reversed five cases with holdings similar to that of the majority. Gooding was the basis for reversal in each instance. See Cason v. City of Columbus (1972), 409 U.S. 1053, 34 L. Ed. 2d 507; Martin v. City of New Orleans (1972), 409 U.S. 944, 34 L. Ed. 2d 214; Brown v. Oklahoma (1972), 408 U.S. 914, 33 L. Ed. 2d 326; Lewis v. City of New Orleans (1972), 408 U.S. 913, 33 L. Ed. 2d 321; Rosenfeld v. New Jersey (1972), 408 U.S. 901, 33 L. Ed. 2d 321. In order to avoid arbitrary enforcement and intrusion upon protected free speech, such a statute cannot punish pure speech unless it is likely to lead to imminent lawless action. As interpreted by the majority, the disorderly conduct statute remains both overly vague and
The majority then asserts that any question as to the sufficiency of the affidavit has been waived. The only apparent basis for this is that the Superior Court judge did not rule on the appellant‘s Motion to Quash. As the majority notes, the record before the Superior Court judge contained the following statement:
“The issues raised on this appeal are as follows: 1. Whether the judge of the Circuit Court erred in overruling defendant‘s motion to quash the affidavit. . . .”
Admittedly this was not an “appeal” as such, but the State refiled the affidavit in the Superior Court, using exactly the same words with no amendments, so that it would seem clear that appellant was continuing his challenge to the sufficiency of the affidavit. Other matters in the record unequivocally demonstrate that appellant intended to be challenging the affidavit by means of a Motion to Quash. The record contains the following:
“Prior to the entry of his plea of not guilty in the City Court, the defendant filed a motion to quash the affidavit on the ground that it failed to charge the offense with sufficient certainty, and on the ground that the disorderly conduct statute (hereinafter cited as Section 10-1510) is unconstitutional on its face. A copy of this motion to quash the affidavit and the supporting memorandum are attached and made a part of this record.” (Emphasis added)
The judge never ruled upon the Motion to Quash, but simply entered judgment against the appellant on July 19, 1971. Since the case was tried upon stipulated facts, no hearing was held in Superior Court. On July 22, 1971, appellant filed a Motion for Clarification of Judgment which contained the following:
“At no time in these proceedings has the State responded substantively to the points made by the defendant, and
neither the City Court nor this Court has offered any reasons for finding that the State‘s pleading was legally sufficient; that the disorderly conduct statute is constitutional on its face; and that the said statute was applied constitutionally in the instant case. “The clarification hereby requested is important to counsel‘s preparation of a motion to correct errors and any subsequent appeal that may become necessary.
“Counsel would welcome the Court‘s advice as to the basis upon which this conviction was upheld in light of the authorities discussed in the memoranda filed herein and in light of the absence of authority offered by the State or by this Court for sustaining the conviction herein.” (Emphasis added)
The Superior Court judge did not respond to this motion, and on September 16, 1971, appellant filed his Motion to Correct Errors which stated in part:
“The Court committed error in overruling defendant‘s Motion to Quash the Affidavit for Disorderly Conduct. The said motion challenged the affidavit on the grounds that it did not state the offense with sufficient certainty; . . .”
No one can doubt that appellant was continuing his objection to the affidavit, especially in light of the fact that the words of the affidavit were unchanged when it was refiled. Appellant made his Motion to Quash a part of the record before the Superior Court which would seem to me to be substantially the same as refiling his Motion to Quash. He followed that by requesting a ruling on the sufficiency of the pleadings on at least two occasions. I am of the opinion that the question was properly before the Superior Court and is now properly before this Court. I would answer appellant‘s contention on the merits.
The affidavit in this case is insufficient. The initial “multiple choice” affidavit filed in City Court in Bloomington was as follows: (See following page)
COUNTY OF MONROE
SS:
Cause No. 702219
THE STATE OF INDIANA VS. Gregory Hess
IN THE CITY COURT OF THE CITY OF BLOOMINGTON
Affidavit For Public Intoxication
Disorderly ConductAssault and BatteryChild NeglectResisting Arrest
(STRIKE OUT PARTS NOT APPLICABLE)
The undersigned, being duly sworn on oath, on information and belief, says that at and in the County of Monroe and State of Indiana, to wit: 100 block of S. Indiana Ave. on the 13th day of May, 1970, one Gregory Hess, late of said County, did then and there unlawfully:
☐ commit the offense of intoxication in public places by being found in a public place and a place of public resort in a state of intoxication,
☑ act in a loud, boisterous, and disorderly manner so as to disturb the peace and quiet of the (household) and (neighborhood) in and around the aforementioned place by loud and unusual noise, and by tumultuous and offensive behavior, threatening, traducing, quarreling, challenging to fight and fighting
☐ touch, beat, and strike the person of one ________________ in a rude, insolent, and angry manner,
☐ and wilfully fail and neglect to furnish necessary food, clothing, shelter, and medical attention to his minor children (being boys under the age of 16 years and girls under the age of 17 years), to wit:
said defendant being the father thereof and able to furnish such support,
☐ forcibly assault, resist, oppose, obstruct, impede, and interfere with a police officer while such officer was arresting _______________
contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.
Affiant: Howard Wile
Subscribed and sworn to before me this 14th day of May, 1970.
State‘s Witnesses: Sheriff, Thrasher
Douglas R. Bridges
Deputy Prosecuting Attorney
Approved by:
Douglas R. Bridges
Deputy Prosecuting Attorney
“The undersigned, being duly sworn on oath, on information and belief, says that at and in the County of Monroe and State of Indiana, to-wit: 100 block of South Indiana Avenue, on the 13th day of May, 1970, one Gregory Hess, late of said County, did then and there unlawfully act in a loud, boisterous and disorderly manner so as to disturb the peace and quiet of the household and neighborhood in and around the aforementioned place by loud and unusual noise, and by tumultuous and offensive behavior, threatening, traducing, quarreling, challenging to fight and fighting contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.”
An accused has a constitutional right to be given adequate notice of the charges against him.
“[I]t is the well established rule in this state that the particular crime with which the defendant is charged must be shown with such reasonable certainty, by express averments as will enable the court and jury to distinctly understand what is to be tried and determined, and to fully inform the defendant of the particular charge which he is required to meet. The averments must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder.”
In Loveless v. State (1960), 240 Ind. 534, 539, 166 N. E. 2d 864, 866, Chief Justice Arterburn stated:
“[A] defendant is entitled to be informed specifically of the crimes charged and not come to trial in the dark and uninformed as to the nature of the evidence to be presented against him.” (Emphasis added)
Appellant was arrested for saying the word “fuck” and so he probably assumed that this would be the act he would have to defend against. In the course of both trials, the appellant sought a clarification of exactly what the State thought were the acts he committed which constituted the offense. Finally, after both trials were completed and appellant had filed his Motion to Correct Errors, the Superior Court judge stated that the phrase, “We‘ll take the fucking street later [or again],” had “a tendency to lead to violence” regardless of the foul language. To discover the basis for the prosecution only after the trial is completed is both unfair and unconstitutional.
Appellant‘s conduct has been admitted by all to constitute pure speech. We had previously held in Whited that for pure speech to be disorderly conduct it had to have a tendency to lead to violence. Thus, in appellant‘s case the allegation that his words would have a tendency to lead to violence would be an essential element of the crime. An accused has the right to have all the essential elements of the offense charged in the affidavit. McCormick v. State (1954), 233 Ind. 281, 119 N. E. 2d 5; Borton v. State (1952), 230 Ind. 679, 106 N. E. 2d 392. The affidavit before us is therefore defective and subject to a Motion to Quash for failure to state all the essential elements of the crime.
On the basis of the objections to the affidavit alone, the cause should be reversed and remanded with proper limiting standards placed upon the statute.
In conclusion, although I might find other limiting standards more reasonable, it seems to me we should feel compelled to apply the minimum constitutional standards established by the Supreme Court of the United States. We should not stretch the facts beyond those in the record to fit some nebulous stand-
NOTE.—Reported in 297 N. E. 2d 413.
Notes
| I (manner) | II (disturb peace and quiet of) | III (by) |
|---|---|---|
| 1. Loud | family | loud noise |
| 2. Loud | Loud | unusual noise |
| 3. Loud | neighborhood | loud noise |
| 4. Loud | neighborhood | unusual noise |
| 5. Loud | family | tumultuous behavior |
| 6. Loud | neighborhood | tumultuous behavior |
| 7. Loud | family | offensive behavior (threatening) |
| 8. Loud | neighborhood | offensive behavior (threatening) |
| 9. Loud | family | offensive behavior (traducing) |
| 10. Loud | neighborhood | offensive behavior (traducing) |
| 11. Loud | family | offensive behavior (quarreling) |
| 12. Loud | neighborhood | offensive behavior (quarreling) |
| 13. Loud | family | offensive behavior (challenging to fight) |
| 14. Loud | neighborhood | offensive behavior (challenging to fight) |
| 15. Loud | family | offensive behavior (fighting) |
| 16. Loud | neighborhood | offensive behavior (fighting) |