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63 Cent. L.J. 467 (1906)
Disturbing the Peace

handle is hein.journals/cntrlwj63 and id is 473 raw text is: CENTRAL LAW JOURNAL. right to sell the property upon the Idea that there bad been a default in making payment of its just -demands. The sale of the property, pending the negotiations with respect to fixing the amount which the consignor would be called on to pay, was a conversion. That this conversion was brought about through a misunderstanding on the part of some of the company's officials as to the true status of the matter cannot affect the question of the company's liability; It, at least, was bound to know how the matter stood and is responsible for the wrongful acts of its officers in disposing of the property at auction sale. It may be that it was the right of the company to plead that it acted in good faith and through the mis- take of some of its officers or servants, and for this reason should be allowed to set off against the plaintiff's claim such lawful charges as the plaintiff would have been under a duty to pay be- fore getting possession of the shipment. But no such plea was filed, no evidence was submitted as to the amount of the charges which the company was entitled to collect, and the sole contention urged upon the trial was that the company was not liable in any amount to the plaintiff. This being true, the admitted value of the property was the only measure by which the plaintiff's re- covery could be fixed; and ruling only upon the single question presented for our determination, viz., whether or not a conversion of the property was shown, we hold that the trial judge arrived at a proper solution of this question. DISTURBING THE PEACE.* I. INTRODUCTION. A. Confusion as to the Meaninmg of the Term-I. Definitions of Authors.-A disturbing the peace or a breach of the peace, as it is more com- monly called, is one of the few legal phrases which neither authors nor judges have carefully analyzed. Some writers have regarded the term as -generic, including a number of other well- defined crimes. Thus, in one of the more recent works, it is said: The, term 'breach of the peace' is generic and includes all violations of public peace or order, or acts tending to the dis- * While the present dean of the law department of the University of Missouri was editor of the CENTRAL LAW JOURNAL, he received numerous requests from practitioners for an article on -'Disturbing the Peace. For some reason, however, he was unable to comply with these requests before the end of his edi- torial work and the assumption of his duties as a teacher of law. Although many years have passed since he made the change, he has not forgotten the demand for investigation in this seemingly unexplored field of our criminal jurisprudence. This year, there- fore, he assigned the subject to the senior class of the department of law, of which he is dean, as the basis of competition for the Edward Thompson prize, and the winning essay was written by Mr. Kelsey. turbance thereof. I Other writers look upon the phrase as denoting a sort of residuary clause of our criminal code. .To quote from a standard authority, a breach of the peace includes violent disturbances of public peace or order, actual, constructive, or apprehended, not constituting any other distinct offense.12 II. THE SUBSTANTIVE LAW OF THE SUBJECT. A. A Division Based Upon Blackstone's Classifi- cation.-An analysis of the decisions shows that breaches of the peace may be divided into two classes: First, those crimes which Blackstone characterizes as offenses against the public peace,83 in which terror is the gravamen of the charge; second, crimes which he calls offenses against the public police and bases upon the broad, indefinite principle that the individuals of the state, like members of a well-governed family, are bound to conform their general be- havior to the rules of propriety * * * and to be decent, industrious, and inoffensive in their respective stations.4 In a word, then, a disturb- ance of the peace as it exists in American law to- day, is the result of a partial conjunction of these two common law sources. Starting with this fundamental division, we are next to consider the subject in greater detail. (.) Terror an Element of the Offense.-First, then, let us consider a disturbing the peace, which is the direct off-shoot of the old common-law conception that terror is the gist of the offense. Following Blackstone's classifica- tionb again, this branch of the discussion divides itself into two parts: actual breaches of the peace and the so-called constructive breaches. It will appear from a further discussion that an actual breach of the peace is determined by its actual effect; while a constructive breach is de- termined by its probable effect. (a) An Actual Breach of the Peace, Defined, Ex- plained, and Examples Given.-Viewed from the standpoint now under consideration, an actual breach of the peace may be defined as any act or conductwhich puts persons of ordinary firmness in the immediate viinity thereof in fear of bodily harm.6 This definition only intends td indicate in a general way the principles involved; a cor- rect idea of the offense can be obtained only by examining the cases which have been decided. Violence need not be inflicted upon any one, for I 5 Cyc. 1024, Breach of the Peace. See also 4Ain & Eng. Ency. Law (2d Ed.), 903. 2 Am. Dig. (Century Ed.), scope note, p. 970. 8 4 BI. Com. 142, ft. 4 4 BI. Com. 162, see. 5. 24 BI. Com. 142 (intro. par.) 6 State v. Coffin (Vt.), 23 Atl. Rep. 632; State v. Al- exander, 7 Rich. (S. C.) 5; Fisher v. State, 78 Ga. 258; State v. Benedict, 11 Vt. 2a6; State v. Riggs, 22 Vt. 321. More than half the urecedents of indictments for offenses against the peace given by Chitty in his Criminal Law, conclude to the terror of the quiet and peaceable subjects of our lord, the now king.' See Chitty Crim. Law, Vol. 2, p. 485. Vol. 63

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