City of Bismarck v. Travis

154 N.W.2d 918, 1967 N.D. LEXIS 106
CourtNorth Dakota Supreme Court
DecidedNovember 2, 1967
DocketCrim. 344
StatusPublished
Cited by8 cases

This text of 154 N.W.2d 918 (City of Bismarck v. Travis) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Bismarck v. Travis, 154 N.W.2d 918, 1967 N.D. LEXIS 106 (N.D. 1967).

Opinions

STRUTZ, Judge

(on reassignment).

The defendant was charged with the offense of disorderly conduct under an ordinance of the City of Bismarck. He was convicted in police magistrate’s court, and took an appeal from the judgment of con[920]*920viction to the district court where he again was found guilty, by a jury, of the offense charged. The defendant thereupon appealed to this court from the judgment of conviction entered on the verdict and from an order denying his motion for a new trial.

The facts are not in serious dispute, but the defendant contends that such facts clearly show that he is not guilty. Those facts, briefly stated, are:

The complaining witness was employed as a telephone operator. On the evening of November 13, 1964, she had worked until 11 p. m., and after completing her day’s ■duties she, with two girl friends, went to the place of her residence where she awaited an expected long-distance telephone call. The three of them then went to the Drumstick restaurant for a snack and then decided that they would take a short ride before calling it a day. With the complaining witness doing the driving, they drove down Main Avenue of Bismarck in an easterly direction. At Twenty-sixth Street, they made a left turn to the north, intending to make another left turn at the intersection of Twenty-sixth Street and Broadway Avenue in order to take one of the girls to her place of residence on Second Street. When the complaining witness attempted to turn left, or west, on Broadway Avenue, she was prevented from doing so by another automobile which had been driven alongside her car in the intersection and which thus prevented her from making the left turn. She thereupon continued driving north on Twenty-sixth Street to the next intersection, with Thayer Avenue, where she again attempted to turn left, or west. Again she was prevented from doing so by the same automobile. She then proceeded north on Twenty-sixth Street for still another block, to Rosser Avenue, where the same thing happened. The complaining witness then continued north for another block, to Avenue A, where she made a right turn in an easterly direction toward Twenty-seventh Street. After turning toward the east, the car which had been following her and preventing her from making the left turns toward Second Street passed her automobile and was then driven in such a way as to prevent her from making a left turn onto Twenty-seventh Street. This car then completely blocked her progress and she attempted to back up in order to get away from it. The offending car then was turned around so that its headlights shone on the complaining witness’s automobile. She continued backing away and finally struck the curb, whereupon the other car completely blocked her path, making it impossible for her to move in any direction.

The defendant, who was not the operator of the other automobile, thereupon got out of the car and approached the complaining witness’s automobile and stared into the window on the driver’s side. The complaining witness contends that this greatly frightened her. The girls had rolled up the windows of their automobile and locked the doors.' The radio was on so that it was impossible for them to hear what the defendant was saying.

After standing at the door on the driver’s side of the automobile for some five minutes, according to the estimate of the complaining witness, the defendant went around to the right side of the car and knocked on that window. The girls paid no attention to him, however, and refused to open the door. After staying on the right side of the car for another estimated five minutes, the defendant returned to the car in which he had been riding, got into it, and the car then was driven away. The girls thereupon drove to the police station, where the complaining witness made her complaint against the defendant, who had been recognized by one of the girls in the car.

By the time the case came on for trial, the girls other than the complaining witness had left Bismarck. The driver of the car in which the defendant had been riding also had left the community, shortly [921]*921after the above incident, and therefore he was not arrested.

The defendant testified that he had been requested by the driver of the car in which he was riding to tell the girls that the driver thought he knew one of them and that he wanted to talk to her. The defendant contended that he stood at the driver’s side of the girl’s car for a far shorter period of time than claimed by the complaining witness, and that, failing to get a response from her, he had moved over to the right side of the car and knocked on the window. When he got no response from the girls there, either, and when the girls continued to refuse to talk to him, the defendant returned to the automobile in which he had been riding and it was driven away. The defendant again contended that the time during which he had been on the right side of the complaining witness’s automobile was far less than the five minutes which she estimated that he had spent there.

Some time after the jury had begun to deliberate, it sent a note to the trial judge asking if it could bring in a verdict of guilty with a recommendation for clemency, “because no disturbance of the peace arose out of the incident as charged.” Following receipt of this note, the trial court advised the defendant and his attorney that it was the court’s intention to have the jury return into court and inform it that the subject of punishment was not to be discussed or even considered by it, since that was a matter for the court to determine; that the sole question for the jury to consider was the guilt or innocence of the defendant. The defendant objected to this, contending that the contents of the jury’s note indicated that the jurors did not understand the instructions which had been given to them.

The defendant’s appeal to this court is based on the ground that no breach of the peace occurred, and therefore the defendant could not be found guilty of disorderly conduct. Defendant further contends that the jury’s note clearly indicated that it misunderstood the law and that the note, stating that no disturbance of the peace arose out of the incident charged, constituted a finding on the part of the jury that there was no disturbance of the peace and thus the defendant could not be guilty of disorderly conduct. The defendant further contends that the jury should have been instructed by the trial court that if it found no disturbance of the peace, its verdict should be “not guilty.”

The ordinance which the defendant is charged with having violated, insofar as it is applicable to this case, reads:

“10. Disorderly Conduct. Any person who provokes a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:

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City of Bismarck v. Travis
154 N.W.2d 918 (North Dakota Supreme Court, 1967)

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Bluebook (online)
154 N.W.2d 918, 1967 N.D. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-bismarck-v-travis-nd-1967.