121 Kan. 329 | Kan. | 1926
The opinion of the court was delivered by
Fred Hebert appeals from a judgment of conviction rendered upon a charge of a breach of the peace. The prosecution was instituted before a justice of the peace by the filing of a complaint and the issuance of a warrant charging that on November 20, 1924, the defendant unlawfully disturbed the peace and quiet of I. O. Miller. A trial thereon resulted in a conviction, and the defendant took an appeal to the district court. There he was again convicted, and brings the case here, alleging a number of errors, one of which is that the state was permitted to amend the complaint by adding the word “willfully,” so as to charge the defendant with a willful and unlawful breach of the peace. It is also stated that the complaint was not reverified after the amendment. The statute under which he was convicted provides:
*330 “Every person, who shall willfully disturb the peace and quiet of any person, family or neighborhood shall upon conviction thereof be fined in a sum not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months.” (R. S. 21-950.)
The charge that defendant unlawfully disturbed the peace of Miller carries the implication that it was willfully done. However, it does not appear that there was any objection made to the making of the amendment nor to the sufficiency of the complaint as amended. Having gone through the trial without questioning the right to amend the complaint, or that it was not reverified after the amendment was made, defendant is not in a position to raise the question on this appeal.
It is contended that the testimony did not warrant the jury in finding defendant guilty of the charge. It appears to be sufficient. While no personal violence was employed by defendant, there was testimony of abusive language and threatened violence, including the brandishing of a stick which he had in his hand and a threat to mash Miller’s face. There was testimony, too, that at another time he had said to a neighbor that if he ever caught Miller and his brother out he “would beat them damned near to death,” and this statement was brought to the attention of Miller. A threat which tends to produce violence, provoke others to a breach of the peace and causing alarm is an invasion of the peace and security which the law affords a citizen and constitutes a violation of the statute. (9 C. J. 387.) The insulting language and threats as shown in the evidence were calculated to disturb the peace of Miller and he testified that that was its effect.
Considerable is said about the acts of Miller which tended to provoke the unlawful acts of the defendant, but there was a denial of any such provocation.
There is a criticism of the instructions given, but we find no merit in them.
One ground of the motion for a new trial was newly discovered evidence which could not be produced at the trial. An examination of the proposed evidence shows that it was not material and did not afford any ground for setting aside the verdict.
It is urged that the punishment imposed was excessively severe for the offense. The penalty provided by statute is a fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding three months. The punishment imposed was a jail sen
The judgment is affirmed.