Opinion
No. 34032.
June 10, 1940.
DISORDERLY CONDUCT.
Evidence was insufficient to sustain conviction for violating city ordinance by willfully disturbing peace by offensive conduct of committing trespass at nighttime and peeping into windows of another where female persons usually stayed.
APPEAL from the circuit court of Monroe county; HON. CLAUDE F. CLAYTON, Judge.
Jesse M. Coleman, of Aberdeen, for appellant.
The affidavit charges no offense at law.
Sec. 862, Code of 1930, Disturbance of family, noises, and offensive conduct.
The gist of the complaint, in the affidavit, against this defendant, appellant here, is that he was in the yard of a neighbor, across the street from Brooks Lindley's home, about 10 o'clock on a Monday night, July 10, 1939, all as shown by the record, peeping or looking through a window, and the theory of the city's charge is that that conduct was offensive, but there is nothing charged in the affidavit, and nowhere in the record, that shows that the defendant intended to do anything wrong, or illegal, or out of the way, and taking for granted, for the sake of argument, that the defendant was at home that night (which we deny), the conduct evidently could not be offensive, as he might have been looking for some person in the home, on any reasonable kind of business, and our contentions are that the charge, even though it were true, is no offense under our state laws.
The court erred in overruling the motion for a directed verdict, as requested by the defendant, after the City of Aberdeen had rested and also after all the testimony was introduced, as the city had wholly failed to meet the burden of proving this defendant guilty beyond all reasonable doubt, as charged in the affidavit.
Thos. F. Paine, of Aberdeen, for appellee.
There can be no question about the appellant having been identified as the man who entered into the yard of Mr. and Mrs. Owen on the night in question and proceeded to peep or look into the windows of the room occupied by Mr. and Mrs. Thompson, all of which was done in the full sight of Brooks Lindley and his wife.
Section 862 of the Code of 1930, along with other misdemeanors committed within the city limits of Aberdeen, Mississippi, by proper ordinance were made offenses against the City of Aberdeen, Mississippi, and no point is raised by appellant as to the adoption of such an ordinance.
For the benefit of the court we quote Section 862, which is as follows: "Disturbance of family — noises and offensive conduct — A person who wilfully disturbs the peace of any family or person by an explosion of gunpowder or other explosive substance, or by loud or unusual noise, or by any tumultuous or offensive conduct, shall be punished by fine and imprisonment, or either; the fine not to exceed one hundred dollars, and the imprisonment not to exceed six months in the county jail."
In the lower court appellant argued that a person could not be found guilty under this section of the law under the facts in the case for the reason that the family which was disturbed was not the family in whose house the appellant was peeping and that his conduct in peeping into the windows of a room occupied by a husband and his wife was not such offensive conduct as would disturb the peace of any family.
We respectfully submit that to state such a premise is to answer it. If anything in the world would tend to disturb the peace of a family, we insist that the action of the appellant on this occasion in slipping into the yard of Brooks Lindley's neighbor and peeping into the windows of the room occupied by the husband and wife would certainly be offensive conduct.
The appellant was convicted in the court of the Mayor of the City of Aberdeen on an affidavit charging that in the City of Aberdeen he did "wilfully disturb the peace of the family of Brooks Lindley by offensive conduct, to-wit, the said Harry Phillips wilfully did trespass upon the property of Walter Owens at nighttime and peep into the windows of Walter Owens where female persons usually stayed, and which said conduct by Phillips was done and had in view of the family of Brooks Lindley, greatly offending and disturbing his family," etc. He appealed to the court below and was there again convicted.
The evidence discloses that the houses in which the Lindley and Owen families live face each other across an intervening public street. About ten o'clock one night Mr. and Mrs. Lindley, who had retired for the night, saw through their window, by the aid of an electric street light, a man enter the Owen's premises, approach and stand for "a moment" at one of the front bedroom windows of the Owen residence, and then proceed toward the rear of the house. Lindley called to this man and he immediately ran. He and his wife identified him as the appellant. The room lighted by this window was occupied by Mr. and Mrs. Harold Thompson. Thompson was then in the room reading, his wife being absent. He heard someone on the driveway, but paid no attention thereto until a disturbance was raised by the Lindleys. Whether the view into the room from without was in any way obstructed by shades or curtains does not appear. The appellant's defense was an alibi, which, if his and his supporting witnesses were telling the truth, was perfect.
A general ordinance of the city adopts the State's misdemeanor statutes and makes their violation a municipal offense. One of the statutes covered by this ordinance is Section 862 of the Code, which provides that: "A person who wilfully disturbs the peace of any family or person by an explosion of gunpowder or other explosive substance, or by loud or unusual noise, or by any tumultuous or offensive conduct, shall be punished by fine and imprisonment, or either;" etc.
We will assume for the purpose of argument that the facts charged in the affidavit constitute "offensive conduct" within the meaning of this statute, and that a crime is charged although the conduct charged was aimed not at the Lindley family whose peace is said to have been disturbed, but against inmates of the Owen residence. The narrow question then is, do the facts proven warrant a verdict that the appellant did "peep into the window of Walter Owens"? It does not appear from the evidence that one standing by this window at the time the appellant is said to have stood there could have seen into the room by merely turning his eyes in that direction, and no movement on the part of the person who was seen standing there discloses that he was making any effort to see into the room. For aught that appears he may have entered the premises for a very different purpose and stood momentarily by the window without even looking toward it. Had his conduct disclosed that he was attempting to look into the room to see what was therein, as appeared in City of Grand Rapids v. Williams, 112 Mich. 247, 70 N.W. 547, 36 L.R.A. 137, 67 Am. St. Rep. 396, a different question would be presented.
The evidence also discloses that clandestinely looking through windows into rooms at night was a common practice in the locality of these two residences, and that the appellant himself had been seen in the neighborhood the night before acting so as to cause one to suspect that he himself was engaged in such a nefarious practice. The competency of this evidence is challenged, but without passing thereon, it will be sufficient to say that the light afforded thereby is insufficient to warrant a jury in finding that the one who stood for "a moment" by this window did so for the purpose of violating the privacy of persons who might be in the room.
Counsel for the city asked Lindley: "Did you do that (ask his wife for a flashlight) when you saw this man looking in your neighbor's window?" To which he answered: "All this excitement had been going on in this neighborhood and we were scared to death, didn't know what it was about." The witness had not said that the man was looking in the window. That he was so doing was merely an inference of counsel from the testimony.
The appellant's request for a peremptory instruction should have been granted.
Reversed and the appellant discharged.