Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-05-28
SACRAMENTO, FRIDAY MORNING, MAY 20, 1880.

the Police Court. .'haTe tendency to induce HIM
| to commit breach OF the peace, would recognize
and encourage system OF espionage aehorrent to
American ideas, and productive Of more evil than
the practice condemned. Such evidence necessarily
would be of the dubious character of which Mr..
! Greenleaf speaks in his treatise on Evidence. All
that he says of oral admissions is applicable TO the
| repetition of what one may "utter to or in the
presence of another especially in the absence Of
| he person spoken Of With respect to all verbal
admissions, it may be observed That they ought to
be received with great caution. The evidence, con-
sisting as it does in the mere repetition Of oral
| statements is subject to much mperfect;On ard
mistake, the party himself either not hav
| ing clearly expressed his own meaning, or the wit
ness having misunderstood him. 1t frequently
happens also, that the witness, by unntentonally
altering few of the expressions really used, gives
an effect to the statement completely at variance
| with what the party actually did saw" Il Green.
| leafs Ey., Sec. 200)
| Such an interpretation of the orders would revive
kind OF judicial investigation for which there have
| been no precedents in this country, and none in
| England since the reign of Edward the Fourth.
when citizen OF London was hanged who had said
he would make his son an heir of the "crown" the
sign Of the house in which he lived, and gentle
man, whose favorite buck the King had killed in
hunting, was decapitsted because he had wished it,
horns and ALL in his belly that counseed the King
to 1t Il Haes p. C., l15) To say that prosecution,
such as has been mentioned, may be maintained by
virtue OF an ordinance the sole authority to pass
which is found in the city charter, above cited by
which the Supervisors empowered to " reg uate
all occupations exhibitions and practices
which are against good morals, contrary to public
order, dangerous to the public safety - is to de-
clare doctrine which, if not subyeroive OF consttu-
tona principles, is apparently vioative of estab.
lished rules relating to municipal legislation
AUNIcT"AL BYLAWS.
Municipal bylaws must harmonic with the gen.
eral laws Of the State, with the municipal charter
and with the PRINCIPLES of the common law IA
Barb. AS Hill 209.) They must also be reason.
able, ard whenever they appear to be the Courts
w.l as matter of law. declare them void. q Kyd
on Corp. l07) We have no space to amplify the
suggestion but there is at least grave doubt whether
an ordinance which provides q punishment of six
months imprisonment and one thousand dol ars fine
| as the penalty for incautious words spoken of an
absent person at the breakfast table (which may ar
bitrariy be considered by jury as having tend
ency to create breach of the peace), would be
reasonable" or held to be authorized under gen.
eral grant of power to the Supervisors to prohibit
regulate practices against good morals, contrary
to public order or dangerous to the public peace
That such al ordinance would not accord with our
| governing policy is further evidenced, perhaps by
the circumstance that no like prohibitory legislation
has ever been attempted In this or other States.
| We have assumed for The purpose of this decision
although the contrary course, the precise objection
| not being made, has been repeatedly pursued by
| this Court, also in the United States Courts
notably in PARROTS and other recent cases.,
| that the invalidity Of the Order 1877 and
1876 ought not to be determined in this pro-
ceeding, and male the ground for petitioners dis
Cnarne. nave ass fllet-1Or the purposes OF tins
decision only-that here habeas corpus the Police
Court will be presumed to have adjudsed the order
Valid and that its judgment in that regard is to be
| treated as final. But in ascertaining tho meaning
of the portion of the Order 1885, which the udg-
ment against the petitioner is based, we may veiy
properly consider the circumstance that if the Ian
guage, suppOsing it be ambiguous be construed in
one way it does not necessarily conflict with the
municipal charter with the common or statutory
law while if it be construed in another manner it
is either clearly repugnant TO all these leaves the
judicial mind with grave doubts that 1t contravenes
State legislation, or impiuges upon the due enjoy.
ment OF constitutional and legal rights It's the or
dinance properly construed which the Police Court
| has adjudged to be valid.
DECISION.
We have so far considered subdivision 3 of Sec.
ton % as il its language would admit of two inter-
pretations But we are unable to discover any am
biguty in it. 1t declares No person shall " ad-
dress to another utter in the presence OF another
| any words having a tendency to create breach
of the peace. Ii the second clause of the sentence
had been omitted and the subdivision had read " ad-
dress to another any words having tendency"
ETC.. could anybody have doubted what it was in
tended to prohibit? There could have been no hes
itation in declaring that the words must be such
as have tendency to produce breach of the
peace the part Of the person to whom
they are addressed. There is nothing in the Ian
guage " or utter in the presence OF another" which
can enlarge the scope of the intended prohibition.
"No person shall address to utter in the pres
ence of another person words having tendency to
induce such other person to commit breach of the
peace" Is not this simple paraphrase of the Ian
guage of the ordinance? Either this truly repre-
sents the meaning, or, we have seen, the sub
division prohibits the utterance of words which can
be construed having certain tendency-in
private, to the smallest audience and in the alb
sence OF the only person who would have reason to
be offended by them-a construction which might be
supposed grievousy to interfere with the nalienable
privileges Of certain coeres 1t is certain that the
ordinance does not require that than two per.
sons should be present when the words are spoken
II it had been intended to punish the denunciation
of absent individuals at public assemblages it would
seem that language would have been employed
somewhat like that OF the Act of January 10, 1873
(Which repealed at the next session OF the
Legisatu ure)- -" Any person who in the presence Of
twenty-five or more persons shall utter any language
with intent to incte to any acts of violence"
etc. Certainly, if the purpose had been to prevent
appeals to riotous mob such as were calculated
only to ncte those present to violence but also
to lead to breaches OF the peace the part
of an absent person denounced, it would not have
been difficult to find apt and fitting words to express
that purpose. For actual riotous conduct the rem.
edy is the strong arm ef the Government efficiently
welded as have doubt it will be if the occa.
sion arises by the executive power. But the pur-
pose Of the third subdivision of Section IS of Order
1l96 is less comprehensive and seems very apparent
The law has always given weight to the pTovocation
which leads to assault insulting words and con-
duct in the presence of the assaant may sometimes
reduce the degree Of his crime, and may always be
considered in mitigation OF punishment
The portion Of the ordinance so often referred to
provides penalty for him who shall provoke an as
sault upon himself I" by addressing to another per
son, uttering in the presence of another person.
words having Il tendency TO create breach
of the peace"
THE POLICE COURT JUDGMENT.
The judgment Of the Police Court, separate from
the eXtraneous recals which constitute no part Of
1t, is simply: " 1t is ordered and adiudged that
(Denis) keerney pay fine Of one Thousand
dollars and be imprisoned in the House OF Correc
ton Of the city and county for six months" Does
the record Of the proceedings Of the Police Court
show that the Court had jurisdiction to render this
judgment! ! The case is unembarrassed by ano her |
question: since no oral evidence offered to es-
tablsh that he in fact tried and convicted for
the commission of any act other than that charged
in the complaint, nor is there any entry in the min
utes Of the proceed gs in any degree looking to-
ward prosecution for the commission Of any other
act. The complaint charges that at certain date
in San Francisco, the petitioner did willfully and
unlawfully utter and address to others, to wit to
large number OF persons then and there assembled
to wit, one hundred and more persons whose names
are unkno vn to deponent certain profane words and
language, which words and language then and there
had a tendency to create a breach OF the peace"
Then follows recital of the words alleged to have
been spoken. There is no averment that the words
were addressed to uttered in the presence of
the person OF whom they were spoken. But |
that the words addressed to or uttered in |
the presence of the person with respect to
whom they spoken constitutes, as we have seen |
the very gist of the ofense created by the third
subdivision of Section IS of Chapter H. of the city
charter. Unless we adopt the construction of the
language OF subdivision three which have already
rejected however responsible the alleged action OF
petitioner, he did not commit the particular crime |
there defned-though he uttered the words in the |
presence of any number of persons other than him
of whom he spoke. This is not the case of COM |
plant nartifciay drawn which in imates the exist
ence OF the facts necessary to the constitution Of the
offense, even of an attempted statement nsuff-
cient but indicating purpose to declare the |
essential facts.
NO CAUSE OF ACTION.
and, however Objectionable the conduct imputed to |
the petitioner, he is no in the eve of the law
charged by the complaint with any crime than if the
paper had ascribed to him the most innocent of |
deeds. If Denis kearney was legally convicted un-
der the ordinance by reason OF his denunciaton of
person in bis absence then each one OF those who |
have employed similar (though sometimes less pro-
fane) language in respect to Denis Kearney he not
being present. may be imprisoned and fined by the |
Police Court.
Itwould seem that criminal actions in the Police |
Court must be commenced by complaint in writing |
(Penal Code, 1426) and that Court is required to
keep docket in which must be entered each action
and the proceedings therein. penal Code, 1928 |
AS to the urisdictional facts which the law directs
TO be set forth the records of that Court they
must be apparent on the face of the proceedings or
its judgment is void. dolly vs. Foltz 81 Ca 32I |
Ii, however, it should be admitted that it |
nigh be established by proof aunde that the pc |
tltioner was tried and convicted Of an offense of
which the inferior Court had Jurisdiction no evi.
dence OF any kind to establish that fact has been |
produced.
Inasmuch as it affirmatiyely appears from |
the record of the hat