This is an appeal from a judgment on an original misdemeanor complaint brought and tried in the DeKalb Superior Court. See Code 1940, T. 15, § 119, and § 7 of Act No. 637 of September 18, 1957 (1957 Acts, p. 956, 957). This latter section provides for trial of a misdemeanor on a complaining affidavit "as though the defendant had been indicted by a grand jury."
Mitchell was convicted by a jury on a complaint reading:
The court adjudged him guilty and sentenced him to sixty days in the county jail.
Mitchell had demurred to the complaint assigning, among others, these grounds:
* * * * * *
His demurrer having been overruled, he was put to trial.
The first prosecution witness was Mr. L. D. Pack, pastor of the New Bethel Baptist Church, near Powell's Cross Roads, DeKalb County. Mitchell had formerly been the minister of this church. After the congregation split, Mitchell led the minority group in setting up another church nearby.
Pack saw Mitchell on January 13, 1960, as he drove across the New Bethel churchyard "out toward the cemetery and got out of his automobile and was there on the church property." Pack described Mitchell's actions as "a little bit unbecoming * * * a little bit haughty, a little bit strutty. * * * He got out of his car. I was standing in the yard and he got out of his car and didn't recognize me as being the minister, the pastor in the church and rammed his hands down in his pockets and strutted around quite a bit."
Pack did not know of Mitchell's having "any feasible business * * * there at that time." Mitchell crossed the churchyard and on reaching the cemetery talked to a group of ladies working there.
Pack became unnerved when two men of the congregation (one of whom was the complainant, McGriff) drove up. Pack set off to get Brother Stallings for "help to quell the situation."
Before the incident, Mrs. Pack was in a normal "health condition" but since that time the condition of her health had been "rough."
Pack further testified that some time after the 13th of January he was walking to his mail box and saw Mitchell and his wife coming down the road "laughing and carrying on." It seemed to Pack that "they were mighty well tickled about something."
Mrs. Pack testified that she and her husband lived in the pastorium which was next to the churchyard. Of the January 13 incident she testified substantially as had her husband.
Her testimony—to which no objection was interposed—went on:
Defense counsel cross-examined her on this point:
Another witness for the State, Mr. Kyle Perry, a member of the New Bethel Church, testified:
Mr. McGriff, who had sworn out the complaining affidavit, also testified. The State did not produce the ladies who had been working in the cemetery.
This evidence, including the cross-examination, can be summarized as showing that Mr. Mitchell (1) came into the churchyard "a little bit haughty," "strutty," and with his hands rammed down in his pockets; (2) crossed over to the adjoining graveyard; (3) spoke to some ladies there; and (4) on an earlier occasion he had puffed up his cheeks at a former brother.
At the conclusion of the State's case, Mitchell moved to exclude the testimony on the ground of there being no legal evidence to support Count One of the complaint. The court overruled the motion.
Mitchell was the only defense witness. He accounted for being at the cemetery in seeking information of the whereabouts of a Mr. Tally Wood. He denied blowing up his cheeks.
The State contends that Mitchell was properly accused and convicted under Act No. 87 of June 24, 1959 (Acts 1959, p. 508), the first section of which reads:
Inasmuch as the Legislature has not prescribed a form of complaint for violations of this statute, we must fall back, for the formal requirements of the accusation, upon those specified by the common law as modified by statute. Our Constitution provides pertinently as follows:
Jones v. State, 136 Ala. 118, 34 So. 236, repudiates the bill of particulars in our criminal practice as a means toward making the indictment more definite and certain.
Our Code has relaxed the rigidity of the common law description of the accused (christian name, surname, estate, trade or calling, residence), the time and place of the charged act, and the offense—if need be in apt words, e. g., "murdered," "feloniously," "burglariter," etc. iv Bl. Com. 306. Code 1940, T. 15, §§ 227-249, applies by catchline and context to indictments and thus, a fortiori, to complaints of misdemeanors.
Aside from the general guide rule of Code 1940, T. 15, § 231, the basic requisites come from §§ 232 and 233:
The averment of time is regulated by § 237; that of place is dispensed with by § 238.
Besides those of §§ 232 and 233, supra, the provisions of §§ 236 and 247 fit into the consideration of this case:
This new offense of "disturbing the peace of others," is limited by the statute in that it must be caused
(1) either by
(2) conduct calculated to provoke a breach of the peace.
Thus the act denounces disturbing the peace of others in any of three ways, i. e., two species of conduct and one of words.
We find no difficulty as to the specificity of disturbing "the peace of others by language which is violent, profane," etc. We pretermit consideration of conduct of that character because we consider that disturbance "by conduct calculated to provoke a breach of the peace" is too vague when not amplified by further particulars.
Thus we illustrate from Turnipseed v. State, 6 Ala. 664:
And from Anthony v. State, 29 Ala. 27, we excerpt:
In his dissenting opinion in Gayden v. State, 262 Ala. 468, at page 476, 80 So.2d 501, at page 509, Mr. Justice Merrill explains the Turnipseed opinion as resting on the rigidity of the criminal law before 1852. Yet it has been cited later.
Strictly speaking, there is no majority opinion of the Supreme Court in the Gayden case. This is because Mr. Justice Lawson concurred (with Mr. Justice Simpson's opinion to which Livingston, C. J., and Mayfield, J., adhered) as to the result. The result, of course, was an order affirming the judgment of this court in Gayden v. State, 38 Ala.App. 39, 80 So.2d 495. Code 1940, T. 13, § 95, provides that the "decisions of the supreme court shall govern the holdings and decisions of the court of appeals." See Willis v. Buchman, 30 Ala.App. 33, 199 So. 886.
Since there is no conflict between the opinions of Mr. Justice Simpson and that of Judge Carr, the concurrence of four justices of the Supreme Court in the affirmance of the Court of Appeals manifests approval of this court's opinion (aside from dicta) as the law of the case. This in turn requires our adherence to Judge Carr's opinion under statutory stare decisis per § 95, supra.
Moreover, we find no principle in the later case of Hochman v. State, 265 Ala. 1, 91 So.2d 500, which conflicts with our views of the instant complaint. Subdivision (7) of Code 1940, T. 22, § 75 (declaring certain per se nuisances deleterious to public health) proscribes "the conducting of a business * * * or the doing of a thing, not inherently insanitary * * * in such a manner as to make it a menace * * * to public health."
The Hochman case reversed this court, 38 Ala.App. 602, 91 So.2d 495, an action which requires the consideration of the Supreme Court en banc. Certainly, that opinion so far as it explains the application of the Gayden rule is the latest reconsideration of an indictment not coming under one of the forms in Code 1940, T. 15, § 259.
To illustrate: if the statute makes it a misdemeanor to spit upon a public sidewalk, then an allegation that "A. B. (since the date of the Act but not more than twelve months theretofore) spat upon a public sidewalk" should suffice. But if the statute denounces "disturbing the peace of others by doing an act in a public thoroughfare which might menace the health of others," the charge must allege an act done. Otherwise, one generality is only bolstered by another.
Ground 2 was appropriate to raise any defect as to an alternative averment here. Anderson, C. J., in State v. Collins, 200 Ala. 503, 76 So. 445, pointed out, in considering State v. Nix, 165 Ala. 126, 51 So. 754, that if one or more alternatives in a single count "charge no offense," then on demurrer the indictment would be bad in toto.
Accordingly, we hold the trial court erred in overruling the demurrer to the complaint because the alternative allegation that Mitchell "disturbed the peace of others * * * by conduct calculated to provoke a breach of the peace" was too uncertain in laying the quo modo of the alleged disturbance. Every indictment [and criminal complaint] is presumed to be against an innocent defendant. Bishop, New Crim.Proc. (2d Ed.), § 518.
Also, our traditional and constitutional rights to know of what and why we are accused—in the light of the lack of a bill of particulars—together with the relative ease with which amendments may be made in misdemeanor trials cumulate to this result. In the Gayden case, supra, Carr, P. J., said [38 Ala.App. 39, 80 So.2d 500]:
We are further of the opinion that the evidence was insufficient to show conduct which, under good pleading, can be averred under the statute as a violation. In other words, being strutty, puffing up one's cheeks and jamming one's hands into his trouser pockets as though he were Napoleon may disturb the peace of some people, but the standard for disturbance must be confined to conduct which is violent, menacing, or imports provocation to make another commit an actual breach of the peace. See Ellis v. Pratt City, 113 Ala. 541, 21 So. 206.
Accordingly, the judgment of the trial court is reversed and the cause is there remanded for proceedings consistent herewith.
Reversed and remanded.