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State v. Givens

135 N.W.2d 780, 28 Wis. 2d 109
CourtWisconsin Supreme Court
DecidedJune 25, 1965
StatusPublished
Cited by55 cases

This text of 135 N.W.2d 780 (State v. Givens) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Givens, 135 N.W.2d 780, 28 Wis. 2d 109 (Wis. 1965).

Opinions

[115]*115Gordon, J.

Vagueness of Statute.

The appellants argue that the disorderly conduct statute is too vague to be enforced. Sec. 947.01 (1), Stats., quoted above, sets forth six specific types of conduct which are proscribed; this covers conduct that is “violent, abusive, indecent, profane, boisterous, [or] unreasonably loud thereafter the statute contains a so-called “catchall” clause which prohibits “otherwise disorderly conduct” which tends to “provoke a disturbance.”

It has often been held that a criminal statute must be definite enough to inform those who are subject to it as to what acts will render them liable to its penalties. Lanzetta v. New Jersey (1939), 306 U. S. 451, 453, 59 Sup. Ct. 618, 83 L. Ed. 888; Connally v. General Construction Co. (1926), 269 U. S. 385, 391, 46 Sup. Ct. 126, 70 L. Ed. 322. See Unconstitutional Uncertainty—An Appraisal, 40 Cornell Law Quarterly (1955), 195, 196.

We believe that the disorderly conduct statute in the cases at bar is reasonably explicit; the six types of affirmative conduct which are expressly listed in the statute all tend to disrupt good order and to provoke a disturbance. When the statute, after the specific enumerations, in a “catchall” clause proscribes “otherwise disorderly conduct” which tends to “provoke a disturbance,” this must mean conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order and to provoke a disturbance. Such interpretation rests upon the rule of ejusdem generis. See State ex rel. Dinneen v. Larson (1939), 231 Wis. 207, 216, 284 N. W. 21, 286 N. W. 41; Gallagher v. McKeague (1905), 125 Wis. 116, 121, 103 N. W. 233. Upon this approach, the instant statute sufficiently identifies the type of behavior which the legislature intended to be contrary to law. [116]*116The definition, of disorderly conduct contained in Teske v. State (1950), 256 Wis. 440, 444, 41 N. W. (2d) 642, is as follows:

“ While it is impossible to state with accuracy just what may be considered in law as amounting to disorderly conduct, the term is usually held to embrace all such acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency, whether committed by words or acts.’ ”

This view is substantiated by the report of the legislative council’s judiciary committee, published in February, 1953; this report was submitted to the governor and to the legislature when consideration was being given to the enactment of what is now sec. 947.01 (1), Stats. With reference to the disorderly conduct statute (then sec. 347.01), the committee made the following comment:

“The crime of disorderly conduct is based upon the principle that in an organized society one should so conduct himself as not to unreasonably offend the senses or sensibilities of others in the community. Subsection (1) embodies this principle in a form which is on the one hand sufficiently flexible to permit law enforcement officers to keep- order in the community and on the other hand sufficiently definite to prevent abuses in administration. The words ‘violent, abusive, indecent, profane, boisterous, unreasonably loud . . . conduct’ give certainty to the crime while at the same time being broad in scope. On the other hand, .they are not broad enough to take care of every situation generally considered to be disorderly .... This is not intended to imply that all conduct which tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the sense of decency or propriety of the community is included. This is implicit in the phrase ‘tends to disturb or annoy others.’ The question is not whether a particular person was disturbed or annoyed but whether the conduct was of a kind which tends to disturb or annoy others. The section does not protect the [117]*117hypersensitive from conduct which generally is tolerated by the community at large.
“The other phase of disorderly conduct under subsection (1) is conduct likely to cause or provoke a disturbance of public order, and what type of conduct is likely to do this is largely a question of fact in each case.” (Vol. V, Report on the Criminal Code, page 208.)

The fact that a statute fails to itemize with particularity every possible kind of conduct which would violate such statute does not make it constitutionally vague. Jordan v. De George (1951), 341 U. S. 223, 71 Sup. Ct. 703, 95 L. Ed. 886; United States v. Ragen (1942), 314 U. S. 513, 62 Sup. Ct. 374, 86 L. Ed. 383; Levy Leasing Co. v. Siegel (1922), 258 U. S. 242, 42 Sup. Ct. 289, 66 L. Ed. 595; Nash v. United States (1913), 229 U. S. 373, 33 Sup. Ct. 780, 57 L. Ed. 1232; St. Petersburg v. Calbeck (Fla. 1959), 114 So. (2d) 316; State ex rel. Green v. Capehart (1939), 138 Fla. 492, 189 So. 708; St. Paul v. Morris (1960), 258 Minn. 467, 104 N. W. (2d) 902; State v. Reynolds (1954), 243 Minn. 196, 66 N. W. (2d) 886. But cf. People v. Diaz (1958), 4 N. Y. (2d) 469, 151 N. E. (2d) 871, 176 N. Y. Supp. (2d) 313; Griffin v. Smith (1937), 184 Ga. 871, 193 S. E. 777.

In United States v. Wurzbach (1930), 280 U. S. 396, 399, 50 Sup. Ct. 167, 74 L. Ed. 508, Mr. Justice Holmes stated:

“Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk.”

Proof of Criminal Acts.

As their primary contention, the appellants claim that the record fails to establish facts which bring them within the [118]*118disorderly conduct statute. The appellants point to their quiet, passive, and nonviolent demeanor and contend that the holding of this case should be governed by recent United States supreme court cases in which breach-of-peace convictions were reversed because the defendants were publicly expressing their views under' constitutional protections. Cox v. Louisiana (1965), 379 U. S. 536, 85 Sup. Ct. 453, 13 L. Ed. (2d) 471; Fields v. South Carolina (1963), 375 U. S. 44, 84 Sup. Ct. 149, 11 L. Ed. (2d) 107; Henry v. Rock Hill (1963), 375 U. S. 6, 84 Sup. Ct. 44, 11 L. Ed. (2d) 38; Edwards v. South Carolina (1963), 372 U. S. 229, 83 Sup. Ct. 680, 9 L. Ed. (2d) 697.

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Bluebook (online)
135 N.W.2d 780, 28 Wis. 2d 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-givens-wis-1965.