59 Vt. 548 | Vt. | 1887
The opinion of the court was delivered by
The indictment is under R. L. sec. 4228, which provides that a person who “disturbs or breaks the public peace by tumultuous and offensive carriage, by threatening, quarreling,” etc., shall be punished as prescribed; and the respondent claims that the indictment is insufficient in that it does not allege that the respondent committed either of the offenses set forth in the statute, which constitute a breach of-the public peace.
Referring to the indictment, it will be seen that it charges in the first count that the respondent, on a day certain, at a place certain, with force and arms, “did disturb and break the public peace by his tumultuous carriage then and there exhibited to the public,” and then proceeds to specify wherein this “tumultuous carriage” consisted, and to declare that it had the effect to disturb the public peace. The second count, opening in the same language as the first, but charging the offense on another day, adds the allegation that the respondent “ then and there quarreled with the said Bay, by cursing and swearing at the said Bay, and by calling him opprobrious, in
Several acts or offenses,'necessarily different and distinct, are embraced' within the terms of the statute; and an indictment under it must, unquestionably, charge with the degree of certainty and particularity required in criminal pleading, the commission of some one of these acts or offenses, and that the effect of it was to disturb or break the public peace. The first count of this indictment is certainly open to criticism. ‘ ‘ Tumultuous and offensive carriage,” in the conjunctive, is one of the things denounced by the statute. The first count charges “ tumultuous” but not “ offensive” carriage, and the objection that it failed to charge a complete offense would have much force. A man’s carriage might, conceivably, bo “ tumultuous,” as in the noisy expression of joy over some great national good or achievement, and' yet be the opposite of “ offensive,” and tend to spread rejoicing and good-will rather than to disturb or break the public peace, in the true sense of that term.
But it is unnecessary to pass upon this point, as in our judgment the second count sufficiently charges, another and distinct offense named in the statute, which is a breach of the public peace by quarreling; and as the evidence strongly sustains that chax-ge, the conviction may properly stand upon the second count. State v. Hanley, 47 Vt. 290; State v. Carpenter, 54 Vt. 551.
No allegation of an intent to break the public peace was necessary. The statute does not require it, and the act is of a character which necessarily imports intent.
In the view above taken the respondent’s second, third and seventh requests to charge, as well as a part of the first, become immaterial; and upon the points raised by the other requests we think the charge of the court was as full and explicit as could be required, and that the law was correctly stated by the learned judge.
The evidence received as to what was said by the respondent, the manner in which it was said, and what transpired, was
We find no error in the record, and the respondent takes nothing by his exceptions, and is sentenced to pay a fine of twenty dollars and costs, with the alternative sentence as prescribed by the statute.