Dеfendant Roy Mash appeals on leave granted from a judgment of the Washtenaw County Circuit Court, which affirmed defendant’s district court conviction for making a disturbancе in a public building, contrary to MCLA 750.170; MSA 28.367.
Defendant was convicted for his participation in a sit-in at the University of Michigan Literature, Science, and Arts Building (L.S.A.). The sit-in began about 6 p.m. on September 25, 1969, when approximately 125 persons assembled on the first and second floors of the L.S.A. Building after the regular closing hour. They were told to leave the building after that time by University President Robben W. Fleming. The next morning, the sit-in participants were told to leave the building by an Ann Arbor police officer. When they failed to do
Testimony directly involving the defendant was to the effect that he was seen in the building by a defense witness sоmetime earlier that evening or night and that he was arrested while standing in the first floor lobby of the building with several other persons at approximately 3:30 a.m. September 26, 1969. Althоugh there was testimony that damage was done to the building and that items were taken from the building during the incident, there was no testimony that defendant was personally involved in the dаmage or thefts.
On appeal defendant contends: (1) that the statute under which he was convicted was vague and overbroad; (2) that the evidence was insufficient tо sustain the conviction; (3) that the testimony of the university president as to the statements he made to participants at the sit-in was hearsay and prejudicial; and (4) that the charge to the jury was inaccurate and confusing.
Defendant on appeal alleges that MCLA 750.170, supra, is so vague and overbroad that it deprived him of reasonable notice of prohibited conduct and that it denied the trier of fact of standards to be used for determination of guilt. This statute reads as follows:
"Any person who shall make or excite any disturbance or contention in any tavern, store or grocery, manufacturing establishment or any other business place or in any street, lane, alley, highway, public building, grounds or park, or at any eleсtion or other public meeting where citizens are peaceably and lawfully assembled, shall be guilty of a misdemeanor.”
This statute was first considered by our Court in
People v Weinberg,
"In Black’s Law Dictionary (4th ed, 1951), p 563, a disturbance is defined as:
" 'Any act causing annoyance, disquiet, agitation, or derangement to another, or interrupting his peace, or interfering with him in the pursuit of a lawful and appropriate occupation or contrary to thе usages of a sort of meeting and class of persons assembled that interferes with its due progress or irritates the assembly in whole or in part.’
"From the above definition it is clear that the statutory prohibition, framed in the disjunctive, embraces more than actual or threatened violence. Violence, actual or threatened, is proscribed by the use of the word 'contention.’ The statute, however, does not require both a disturbance and a contention to sustain a conviction. Either is sufficient. A disturbance, which is something less than threats of violence, is аn interruption of peace and quiet; a violation of public order and decorum; or an interference with or hindrance of one in pursuit of his lawful right or occupation.” (Second emphasis ours.)
The same statute was later construed in
People v Purifoy,
This Court agreed with the three-judge Federal district court panel in Detroit, which held in an unpublished opinion that the phrase "excite any contention” utilized in the statute must be read
While Chief Judge Lesinski, who wrote the principle opinion in
Purifoy,
confessed as error his earlier concurrence with the Court’s opinion in
Weinberg, supra,
because "the definitional language there employed implies that something less than a threat of violence which merely interferes with and causes irritation of others may be the sole basis fоr conviction under the statute”,
Defendant next contends that the only evidence of his guilt in this case is the fact he was present in the L.S.A. Building on the day in question and the fact that he was arrested early that morning.
Defendant’s argument entirely overlooks all of the other testimony in the case which established the corpus delicti of the offеnse. Defendant ignores the testimony that the building was closed at the regular hour, that persons remained in the building beyond the regular hour, and that they failed to leave the building whеn requested to do so by the university president and Ann Arbor police officers. In addition, the testimony of Arthur Rentz demonstrated that he was unable to perform his janitorial duties in thе L.S.A. Building on account of the crowd’s presence. Thus, it is obvious that Rentz was hindered in the "pursuit of his lawful right or occupation”. Accordingly, we conclude there was sufficiеnt evidence produced at trial for the jury to convict the defendant beyond a reasonable doubt of creating a disturbance, within the definition of Weinberg, supra.
Defendant nеxt contends that President Fleming’s testimony concerning his statements to a crowd gathered in the plaza between the Administration Building and the L.S.A. Building and his statements that they would be expected to leave the building at closing time were inadmissible hearsay as to the accused. Per contra, a witness’s testimony as to what he had said on a prior оccasion does not come within the hearsay rule because its value does not depend on the credibility of an out-of-court declarant.
People v Rohn,
Defendant now attacks the trial court’s instruction on a number of grounds. Basically, defendant contends that the trial court’s instruction was erroneous and misleading because the court first instructed that defendant was charged with mak
What actually happened is that the trial judge instructed the jury that defendant was charged with making or exciting a disturbance or contention in a public building. He gave the definition of the offense from Weinberg. After the instructions were concluded, defense counsel, out of thе presence of the jury, requested that the prosecution elect between the disjunctive offenses of disturbance or contention. After the prosecutоr stated unequivocally that the theory of the people’s case was that defendant was guilty of a "disturbance”, the trial court so instructed the jury and reiterated the definition of making or exciting a "disturbance” which it had given earlier.
A reading of the entire jury charge satisfies that it was not confusing and erroneous as defendant contеnds. The court properly limited the jury’s consideration to disturbance, as defendant requested and as the prosecution had submitted the case throughout the trial.
We find no reversible error and we affirm the jury’s verdict.
Notes
Detroit Metropolitan Welfare Rights Organization v Cahalan, Civil No 34006 (ED Mich, May 29,1970).