COMMONWEALTH vs. SANDRA JARRETT. (and ten companion cases [Note 1]).

QUIRICO, J. A separate complaint against each of the eleven defendants charges that on August 19, 1969, at Cambridge, the particular defendant "did disturb the peace of said Commonwealth, by making loud noises and outcries and by uttering in a loud tone, threatening, abusive, profane,

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indecent and violent language, and by striking divers grievous blows at divers persons, and by behaving in a violent and disorderly manner; to the great damage and common nuisance of the citizens of said Commonwealth, then and there inhabiting, being and residing, against the peace of the said Commonwealth and the form of the statute in such case made and provided."

All the defendants were tried in the Third District Court of Eastern Middlesex, were there found guilty and fined $200 each, and they appealed therefrom to the Superior Court. Each defendant filed a motion in the Superior Court to dismiss the complaint against him or her on the grounds: (1) that the statute under which it purports to lie, G. L. c. 272, Section 53, in its applicable portion, is unconstitutionally vague and overbroad, in violation of the Constitution of the United States and of the Commonwealth; and (2) the complaint fails to state any crime under the laws of the Commonwealth.

Prior to trial in the Superior Court a judge of that court, acting under G. L. c. 278, Section 30A, inserted by St. 1954, c. 528, [Note 2] and without acting on the defendants' motions to dismiss the complaints, reported the following questions to this court for decision.

"1. Whether the phrase `disturbers of the peace', as used in G. L. c. 272, Section 53, to describe a class of persons punishable under said statute sets forth an offense with sufficient definiteness to withstand a challenge of constitutional infirmity on the ground of vagueness.

"2. Whether the phrase `disturbers of the peace', as used in G. L. c. 272, Section 53, to describe a class of persons punishable

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under said statute, sets forth with sufficient delimitation, a class of persons whose conduct may constitutionally be proscribed as criminal."

General Laws c. 272, Section 53, [Note 3] provides that certain classes of persons described therein, including "disturbers of the peace," may be punished by imprisonment or a fine, or both. The words "disturbers of the peace" were first added to that section when it was rewritten by St. 1943, c. 377. The major emphasis of the arguments from counsel for the Commonwealth and for the defendants seems to be based on the assumption that Section 53, as appearing in St. 1943, c. 377, created a new statutory crime of being a disturber of the peace, and that the complaints in these cases charge the defendants with that statutory crime. We disagree with that assumption.

It was a crime under the common law to disturb the peace of the public, or some segment of the public, by actions, conduct or the utterances, the combination of which constituted a common nuisance. Commonwealth v. Smith, 6 Cush. 80. Commonwealth v. Harris, 101 Mass. 29. Commonwealth v. Oaks, 113 Mass. 8. Most of such prosecutions involved allegations of disturbing noises in public places, and the noises were often alleged to consist of loud utterances, exclamations or outcries, and sometimes to include profanity.

The 1943 addition of the words "disturbers of the peace" to G. L. (Ter. Ed.) c. 272, Section 53, was the result of a recommendation made by a special commission established under c. 48 of the Resolves of 1941 "for the purpose of making an investigation and study of the criminal laws of the commonwealth and of drafting a penal code more in harmony with modern conceptions of crime, punishment and correction." The report of the commission (1943 House Doc. No. 1462,

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p. 9) stated in part: "we recommend the amendment of section 53 of chapter 272 of the General Laws in the following respects: . . . (2) By adding `disturbing the peace, keeping a noisy and disorderly house and indecent exposure.' These offences are added to this statute because there is now no penalty for them. [Note 4] In the Public Statutes, punishment as herein recommended was provided, but this punishment was omitted on codification. Our suggestion corrects this omission" (emphasis supplied). It is clear that the commission was not recommending the creation of a new statutory crime of disturbing the peace, but only recommending the provision of an express statutory penalty for a long recognized common law crime. We hold that when the Legislature adopted the commission's recommendation by enacting St. 1943, c. 377, which added the words "disturbers of the peace" to G. L. c. 272, Section 53, it did not create a new statutory crime. It did not attempt to define any new crime or prescribe what acts would constitute a crime. It merely provided an express statutory penalty for a crime which then existed under the common law.

There have been numerous instances of a similar statutory treatment of common law crimes. It will suffice to point out a few of them. General Laws c. 265, Section 2, provides penalties for the crime of murder. In referring to the predecessor of that statute in Commonwealth v. Webster, 5 Cush. 295, 303, the court said: "In seeking for the sources of our law upon this subject, it is proper to say, that whilst the statute law of the commonwealth . . . [prescribes the penalties for criminal homicides], yet it nowhere defines the crimes of murder or manslaughter, with all their minute and carefully-considered distinctions and qualifications. For these, we resort to that great repository of rules, principles, and forms, the common law." In Commonwealth v. Slaney, 345 Mass. 135, 138,

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the court said: "With respect to the crime of assault, as is frequently the case in our statutes relating to common law crimes, the Legislature has prescribed the penalty for the crime but has not defined the crime itself. G. L. c. 265, Section 13A. For the definition of the crime of assault, resort must be had to the common law." Further examples may be found in G. L. c. 265, Sections 13, 17 and 22, prescribing punishment for the common law crimes of manslaughter, robbery and rape, respectively. [Note 5]

Although G. L. c. 277, Section 79, includes statutory forms of complaints or indictments for some of the offences listed in G. L. c. 272, Section 53, it includes none for the crime of disturbing the peace. Section 79 states that as to crimes for which no form is provided therein, "forms as nearly like the forms hereto annexed as the nature of the cases and the provisions of law will allow may be used; but any other form of indictment or complaint authorized by law may be used." The complaints against the defendants in these cases have captions in the form authorized by Section 79. Each complaint then contains language, commonly referred to as the charge or body thereof, alleging facts constituting the common law crime of disturbing the peace. The allegations are substantially similar to those contained in the complaints in Commonwealth v. Harris, 101 Mass. 29, and Commonwealth v. Oaks, 113 Mass. 8, [Note 6] but in greater detail.

The fact that each complaint concludes with the statement

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that the acts of the defendant were against "the form of the statute in such case made and provided" does not alter or detract from the language in the body of the complaint alleging a common law crime. Neither does it affect the validity of the complaint either under common law pleading or under our statutes. In Commonwealth v. King, 13 Met. 115, 119, the court said that "when an offence, punishable at common law only, is alleged to be contrary to a statute, this allegation may be rejected as surplusage." Commonwealth v. Shattuck, 4 Cush. 141, 146. John Bath & Co. Inc. v. Commonwealth, 348 Mass. 78, 82-83, cert. den. sub nom. Bath v. Massachusetts, 380 U.S. 977. G. L. (Ter. Ed.) c. 277, Sections 17, 33 and 34.

The defendants argue that if they are being charged with the common law crime of disturbing the peace, then that part of our common law which is stated in the Harris and Oaks decisions, supra, with reference to this crime is unconstitutional because it is so vague and overbroad that it deprives them of their rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. They ask that we apply to this law the same test of vagueness which was applied in Connally v. General Constr. Co. 269 U.S. 385, 391, and Lanzetta v. New Jersey, 306 U.S. 451, 453. The basic rule stated in those cases was that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Commonwealth v. Carpenter, 325 Mass. 519, 521. By thus limiting their citations and quotations, the defendants have overlooked or ignored other decisions stating concomitant parts of the same rule to the effect that the Constitution does not require impossible standards, that mere difficulty in determining whether certain marginal offences are within the meaning of the language under attack as vague does not automatically render it unconstitutional for indefiniteness, and that if the language which is challenged conveys sufficiently definite warning as to the proscribed

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conduct when measured by common understanding and practices, it is constitutionally adequate. United States v. Wurzbach, 280 U.S. 396, 399. United States v. Petrillo, 332 U.S. 1, 7-8. Jordan v. De George, 341 U.S. 223, 231-232. Commonwealth v. Pentz, 247 Mass. 500, 507-509. Commonwealth v. Slome, 321 Mass. 713, 715-716. Jaquith v. Commonwealth, 331 Mass. 439, 441-443. Commonwealth v. Douglas, 354 Mass. 212, 219-220.

The common law of this Commonwealth on the crime of disturbing the peace must be tested on the basis of all the concomitant parts of the rule of constitutional requirements against vagueness. We hold that as thus tested, it does not violate the Due Process Clause of the Fourteenth Amendment. When measured by common understanding and practices, the law as was stated in the Harris and Oaks cases conveys sufficiently definite warnings as to what is proscribed. The acts alleged in the complaints against the present defendants are substantially the same as those which were alleged in the Harris and Oaks cases and which were there held to constitute a crime. No greater specificity is required in the law or in the allegations.

The defendants argue further that the law of this Commonwealth on disturbing the peace is unconstitutionally overbroad because of the possibility that it may permit, or may be used for, the prosecution of a person for doing or saying something which is protected by the First Amendment to the Constitution of the United States. They argue that there is nothing in the present law of this Commonwealth which expressly holds that a person may not be prosecuted for, or convicted of, disturbing the peace if that person is merely exercising his rights of freedom of religion, of speech, or of peaceable assembly with other persons, or to petition the government for a redress of grievances. Indeed there is not. Neither is there anything in the law of this Commonwealth to the effect that a person may be prosecuted for, or convicted of, disturbing the peace if his conduct is limited to the exercise of a right or rights protected by the First Amendment.

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There are two obvious reasons why the Harris and Oaks decisions contain no language to negate the possibility of the use of prosecutions for disturbing the peace to impair First Amendment rights. The first reason is that the decisions came down in 1869 and 1873, respectively, long before the First Amendment was held applicable to States. The second is that the defendants raised no such defence under the comparable arts. 2, 16 and 19 of our Declaration of Rights and therefore there was no necessity or occasion to deal with the subject.

The defendants attempt to support their argument on this point by calling attention to the fact that the decisions in both the Harris and the Oaks cases say substantially that it is sufficient if the acts proved are of such a nature as tend to annoy all good citizens, and do in fact annoy any one present and not favoring them. They contend that this permits the conviction of a defendant for merely saying something in the presence of another who disagrees with, or who disapproves of, what has been said. That is not the fair or correct import of the Harris and Oaks decisions. The defendants in those cases were not convicted because of any particular views which they expressed. The record shows much more than the mere making of statements by the defendants. The statements included abusive epithets and profanity; they were made in or near a public way and were unreasonably loud; they caused a crowd to gather; and in one case they were in connection with an altercation with a constable. The mere making of statements, or expressing of views or opinions, no matter how unpopular, or views with which persons present do not agree, has never been and is not now punishable as a disturbance of the peace under the law of this Commonwealth. This statement is not intended to be what the defendants in their brief call a "post hoc" holding or limitation on the prior law of the Commonwealth. it is a statement of what we understand the law to have been at the time of the Harris and Oaks decisions and at all times since.

The Commonwealth contends that because the defendants

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have made no claim that the conduct for which they were arrested was the lawful and proper exercise of a right protected by the First Amendment, they have no standing to raise the issues of alleged vagueness and overbreadth of our law on disturbing the peace. That contention is supported by the decision of a panel of Federal Court judges denying relief to persons similarly charged with disturbing the peace and who sought to enjoin the police from prosecuting them. LeClair v. O'Neil, 307 F. Supp. 621 (D. Mass.), affd. 401 U.S. 984. [Note 7] See Hurley v. Hinckley, 304 F. Supp. 704 (D. Mass.). In view of what we have said above, it is unnecessary for us to decide this issue in these cases.

Because we hold that the crime of disturbing the peace is a common law crime and was not made a crime by G. L. c. 272, Section 53, we are unable to give categorical affirmative or negative answers to the two questions reported for our decision. The cases are remanded to the Superior Court for trial or other proceedings on the complaints in a manner consistent with this opinion. Nothing in this opinion shall operate as a decision whether the defendants' conduct was or was not lawful under the First Amendment to the Constitution of the United States, that issue not being involved in the questions reported.

So ordered.