124 Mich. 311 | Mich. | 1900
(after stating the facts).
“ If any persons to the number of thirty or more, whether armed or not, shall be unlawfully, riotously, or tumultuously assembled in any city, township, or village, it shall be the duty of * * * the sheriff of the county and his deputies to go among the persons so assembled, * * * and, in the name of 'the people of this State, to command all the persons so assembled immediately and peaceably to disperse.”
That this was an unlawful assembly is conceded. Was it a breach of the peace ? The right of the State to enact laws for the observance of the Sabbath is beyond the domain of discussion. Nearly every law that has been passed upon the subject has been contested in the courts. Upon no subject is there a greater unanimity in judicial opinions. I find but one decision which has held such a law unconstitutional. Ex parte Newman, 9 Cal. 502. The opinion in that case was by a bare majority of the court, Justice Field dissenting. That decision was overruled by a unanimous opinion of the court in Ex parte Andrews, 18 Cal. 678. These laws do not infringe upon the religious freedom guaranteed by the constitutions of the United States and of the various States. The statute carefully exempts those who conscientiously believe in the observance of the seventh day of the week, and who actually refrain from secular business and labor on that day. Whether they are enacted because of the necessity of a day of rest, or out of regard to the religious practices and beliefs of the people, or from both considerations, we need not consider. In view, however, of the notorious disregard of some of the provisions of these laws, and the notorious neglect of some sheriffs and other police officers
The State of Georgia enacted a law prohibiting the running of freight trains in that State on Sunday. It was attacked as conflicting with interstate commerce. The law was held valid; the court, speaking through Mr. Justice Harlan, saying:
“The statute of Georgia is not directed against interstate commerce. It establishes a, rule of civil conduct-applicable alike to all freight trains, — domestic as well as interstate. It applies to the transportation of interstate freight the same rule precisely that it applies to the transportation of domestic freight. And it places the business of transporting freight in the same category as all other secular business. It simply declares that, on and during the day fixed by law as a day of rest for all the people within the limits of the State from toil and labor incident to their callings, the transportation of freight shall be suspended.” Hennington v. Georgia, 163 U. S. 299 (16 Sup. Ct. 1086).
Chief Justice Kent, in 1811, in an indictment for blasphemy, said:
“And why should not the language contained in the indictment be still an offense with us ? There is nothing in our manners or institutions which has prevented the application or the necessity of this part of the common law. We stand equally in need now as formerly of all that moral discipline and of those principles of virtue which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could” be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful.” People v. Ruggles, 8 Johns. 290 (5 Am. Dec. 335).
If the utterance of blasphemy is offensive to the virtuous part of the community, and injurious to the morals of the young, is not an open, boisterous, and flagrant violation
“It is exclusively for the legislature to determine what acts should be prohibited as dangerous to the community. The laws of every civilized State* embrace a long list of offenses which are such merely as mala prohibita, as distinguished from those which are mala in se. If the argument in behalf of the plaintiff in error is sound, I see no way of saving the class of mala prohibita. Give every one his natural rights, or what are claimed as natural rights, and the list of civil offenses will be confined to those acts which are mala in se, and a man may go naked through the streets, establish houses of prostitution ad libitum, and keep a faro bank on every corner. This would be repugnant to every idea of a civilized government. It is the right of the citizen to be protected from offenses against decency, and against acts which tend to corrupt the morals and debase the moral sense of the community. Regarding the Sabbath as a civil institution, well established, it is the right of the citizen that it should be kept and observed in a way not inconsistent with its purpose and the necessity out of which it grew, — as a day of rest, rather than as a day of riot and disorder, which would be effectually to overthrow it, and render it a curse rather than a blessing.”
Under a statute which prohibited sporting, etc., on Sunday, baseball games were held to come within the definition of “sporting.” State v. O’Rourk, 35 Neb. 614 (53 N. W. 591, 17 L. R. A. 830). The learned chief justice in that case used the following language:
“ The law, both human and Divine, being thus in favor of abstaining from sporting, etc., on Sunday, is a reason
See, also, State v. Hogreiver, 152 Ind. 652 (53 N. E. 921, 45 L. R. A. 504); State v. Powell, 58 Ohio St. 324 (50 N. E. 900, 41 L. R. A. 854); People v. Havnor, 149 N. Y. 195 (43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707); People v. Bellet, 99 Mich. 151, 155 (57 N. W. 1094, 22 L. R. A. 696, 41 Am. St. Rep. 589).
In 1820 the territorial legislature of Michigan passed an act entitled “An act to enforce the observation of the Sabbath.” Its preamble is as follows:
“Considering that in every community some portion of
The law then enacted is substantially the same as that now upon the statute book.
A breach of the peace is “a violation of public order; the offense of disturbing the public peace. * * * An act of public indecorum is also a breach of the peace.” Bouv. Law Diet. The term is generic, “and includes unlawful assemblies.” 4 Am. & Eng. Enc. Law (2d Ed.), 903. Where the statute prohibited the arrest of any person on Sunday, except in cases of treason, felony, and breaches of the peace, a ball game upon Sunday was held to be a breach of the peace. In re Carroll, 12 Wkly. Law Bul. 9. Under our statute, and under the authorities referred to, this game of baseball was a breach of the peace.
“The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial, but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.”
By statute in New York a sheriff is now made liable for damages to property destroyed by a mob or riot, where notice has been given him of the intended mob or riot, and he fails to take steps to prevent it. That statute fixes the liability, which did not exist at the common law, but his duty as conservator of the peace was the same. Schiellein v. Board of Sup’rs of Kings Co., 43 Barb. 490.
The inquiry is pertinent whether a sheriff, upon notification that a breach of the peace has been planned and is ready for execution, can perform his duty by inquiry of one of the leaders in the proposed breach of the peace, and receiving an assurance from him that he and his fellows would not accomplish the offense without notifying him of their intention. If this can be interposed as a defense, in what classes of crimes or misdemeanors would it not be a defense? In case of a mob, would he be justified in taking the assurance of a supposed leader that they would not accomplish the act without notifying him ? If an attack is 'threatened upon A.’s house at night, and A. notifies the sheriff, has he performed his duty when he has seen the supposed leader of the attack, and received his assurance that he will desist ? Perpetrators of these breaches of the peace will always take steps to put the officers off guard, as they evidently did in this case. Section 11337, 3 Comp. Laws 1897, expressly makes it the duty of the sheriff to suppress every unlawful assembly,
“Q. Mr. Sweet, did you slide your chair this way and enter into a conversation with Mr. McCurdy at recess ?
“A. I did.
“Q. Did you in that conversation say to him, if we had let you gone into that north-country matter, you would have told something of interest; that you had made the sheriff up there smart, and you would make this man smart before you got done with it ? (Objected to as improper.)
“Mr. Lyon: I offer it for the purpose of showing malice.
“Court: You can answer. (To which ruling the defendant then and there excepted.)
“A. May I ask a question?
“Q. That is a question I want answered by ‘Yes’ or ‘No.’
“Court: He asks me if he may ask me a question. I will allow him to.
“Court: That you had with Mr. McCurdy?
“Witness: Yes, sir.
“Court: That will be determined later. I couldn’t rule in advance. I don’t know what it is. Whatever your rights are, they will be protected in one way or another.
“Witness: Let me have the question again. (Question read.)
“A. ‘If this persecution continues.’
“Q. Please answer my question.
“Court (to witness): Did you say that?
“A. I did; yes.”
Redirect examination:
“Mr. Kilpatrick: Q. Now you may explain.
“A. I said, ‘If this persecution continues.’”
We think this testimony was objectionable. It had no reference to the feeling of the defendant at the time of the publication. It related solely to the conduct of the plaintiff in the prosecution of this suit, which the defendant saw fit to call “ persecution.” • It did not tend to show that, at the time of the publication, defendant entertained actual malice towards the plaintiff. It should have been excluded. In view of a new trial, it may be well to state that if defendant was asked on cross-examination about a difficulty with a police officer in Houghton county, for the purpose of attacking his credibility, he should have been permitted to state to the jury the full particulars of that trouble.
Judgment reversed, and new trial ordered.