Opinion
No. 24617
Decided May 9, 1934.
Criminal law — Disorderly conduct — Affidavit charging offense in language of municipal ordinance, sufficient — Calling another a "bastard".
An affidavit charging that "on or about the 13th day of May, A. D. 1933, in the City of Cleveland Heights, Cuyahoga county, one James P. Christie, then and there being, did unlawfully violate Ordinance 1191, Sec. 6, by conducting himself in a loud, insuiting and disorderly manner towards one Frank Schaffer, to wit: by calling said Frank Schaffer a 'bastard' " sufficiently charges an offense under an ordinance which, so far as is here material, provides that: "whoever willfully conducts himself in a noisy, boisterous, rude, insulting, or other disorderly manner, by either words or acts, toward any other person with intent to abuse or annoy such person * * * shall be deemed guilty of a misdemeanor."
ERROR to the Court of Appeals of Cuyahoga county.
It appears from the briefs that Frank E. Schaffer, a police officer of the city of Cleveland Heights, arrested James P. Christie for "double parking" and gave him a "parking ticket". Thereupon, Christie called the said Schaffer "a bastard". Christie paid the fine for the parking offense and was later arrested and tried in the Police Court of Cleveland Heights on the following affidavit:
"CITY OF CLEVELAND HEIGHTS
"In the Police Court of Cleveland Heights. "State of Ohio, "County of Cuyahoga, ss.
"Before me, E.W. Griebal, Clerk of the Police Court of Cleveland Heights, personally came, Frank Schaffer, who being duly sworn according to law deposes and says that on or about the 13th day of May, A.D. 1933, in the City of Cleveland Heights, Cuyahoga County, one James P. Christie, then and there being, did unlawfully violate Ordinance 1191, Sec. 6 by conducting himself in a loud, insulting and disorderly manner towards one Frank Schaffer, to wit: by calling said Frank Schaffer a 'bastard'.
"Said disorderly conduct taking place on a public highway, to wit: Noble Road, contrary to the Ordinance made and provided.
"(Signed) Frank E. Schaffer."
The ordinance referred to in the affidavit was as follows:
"An Ordinance to preserve the peace and order of the Village of Cleveland Heights, Ohio, and to protect the property of said Village and of its inhabitants by prohibiting Riots, Disturbances and Indecent or Disorderly Conduct or Assemblages. * * *
"Sec. 6. Whoever willfully conducts himself in a noisy, boisterous, rude, insulting, or other disorderly manner, by either words or acts, toward any other person with intent to abuse or annoy such person or so as to annoy the citizens of the Village of Cleveland Heights, or any portion thereof, or disturbs the order and quiet of same, shall be deemed guilty of a misdemeanor and upon conviction thereof before the Mayor or Police Justice of said Village shall be fined for the first offense in any sum not exceeding Fifty Dollars, and for the second and each subsequent offense shall be fined in any sum not exceeding One Hundred and Fifty Dollars."
Christie was found guilty by the Police Court. Thereupon, error proceedings were had in the Court of Appeals of Cuyahoga county which court reversed the judgment of conviction "for the reason that the affidavit does not contain sufficient allegations to constitute a crime * * * no other error appearing in the record."
On motion to certify, the case is in this court on error to the Court of Appeals.
Mr. Roger A. Zucker, for plaintiff in error.
Mr. Paul Blasie, for defendant in error.
Two points are made in the brief of the plaintiff in error:
(1) The Court of Appeals could not properly have determined the cause because the transcript and the bill of exceptions were lost and could not be read by the Court of Appeals.
(2) The Court of Appeals was in error in deciding that the affidavit did not charge an offense.
(1) It appears from the record that on July 11, 1933, the "transcript and original papers" were filed in the Court of Appeals. No question is made but that they were filed in time. It is agreed that the affidavit set forth in the statement of facts herein is an exact copy of the original, and the Court of Appeals based its reversal upon the sole ground that this affidavit did not contain sufficient allegations to constitute a crime. We pass, therefore, to the second point.
(2) Does the affidavit charge an offense? The ordinance under which the affidavit was filed provides that "whoever willfully conducts himself in a noisy, boisterous, rude, insulting, or other disorderly manner, by either words or acts, toward any other person with intent to abuse or annoy such person * * * shall be deemed guilty of a misdemeanor * * *."
An affidavit charging an offense in the exact words of the ordinance is not void for indefiniteness. City of Cincinnati v. Schill, 125 Ohio St. 57, 180 N.E. 545.
In that case the syllabus reads as follows:
"1. An affidavit charging that 'one S., on or about the 11th day of June, A.D., 1929, at the City of Cincinnati, County of Hamilton, State of Ohio, did unlawfully and wilfully conduct himself in a noisy, boisterous, rude and insulting manner with intent to abuse and annoy the citizens of Cincinnati,' drawn under favor of Section 550, Ordinances of the City of Cincinnati, which, in so far as it applies to this case, provides: 'It shall be unlawful for any person to wilfully conduct himself in a noisy, boisterous, rude and insulting manner, with intent,' etc., is not void for indefiniteness.
"2. If the exact words of a city ordinance are used in charging an offense, it is not enough to attack the legal sufficiency of the affidavit. The ordinance must be attacked, for it is the ordinance that is at fault and not the affidavit.
"3. If such affidavit were indefinite, the question is not raised in this case. Such question can be raised only by motion to quash before issue joined."
In the instant case the affidavit was more definite than in the Schill case by reason of the addition of the words, "by calling said Frank Schaffer a 'bastard'."
The defendant in error contends that no offense is charged for the reason that the word "bastard", according to the dictionary, has certain innocuous meanings such as: "not genuine"; "abnormal in proportion or dimension"; "unusual"; and that it sometimes means "fast-cutting file" or "unusual sized piece of paper." We do not believe any of these meanings was in the mind of Christie or of Schaffer upon the occasion in question.
The dictionary also defines "bastard" as "begotten and born out of lawful matrimony." From the time to which the memory of man runneth not to the contrary, the term "bastard", applied in anger, as an epithet, has been standard usage in the terminology of insult. Its tendency to provoke disorder is well known. According to a statement in the defendant in error's brief it had that effect in this case, for Schaffer, it is said, smote Christie on the jaw.
In our opinion the affidavit charged an offense under the ordinance and the validity of the ordinance is not attacked.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the judgment of the Police Court is affirmed.
Judgment reversed.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, ZIMMERMAN and WILKIN, JJ., concur.