ANDERSON, Judge.

Defendant, James Sage, was convicted in the St. Louis, Court of Criminal Correction, Division No. 1, on two charges of peace disturbance. The cases were tried together; however, separate appeals were taken. Thereafter, a bill of exceptions was filed in cause No. 28578, and by stipulation of the parties it was agreed that said bill of exceptions should also be considered as the bill of exceptions in cause No. 28579. The cases were consolidated for argument in this court. We will dispose of both cases by this opinion.

In cause No. 28578 defendant was charged with disturbing the peace of Helen Hutchings "by violent, tumultuous, offensive and obstreperous conduct of carriage, and by loud and unusual noises, and by unseemly, profane, obscene and offensive language, calculated to provoke a breach of the peace, and by assaulting, striking and fighting others, and particularly Helen Hutchings," all in violation of Ordinance No. 44886, Chapter 46, Section 20, — Chapter 1, Section 16, approved February 28, 1949.

In cause No. 28579 defendant was charged in like manner with disturbing the peace of Harold Hutchings.

The evidence disclosed that early in the evening on June 19, 1951, defendant and others assembled in the back yard at the home of a Mr. Richardson to view a moving picture film showing the entry of the German Army into Prague. This film had been procured by defendant from the Czechoslovakian embassy at Washington, D. C., for the purpose of showing the film throughout the country. On the occasion in question the film was being shown at Mr. Richardson's request. The showing of this film did not meet with the approval of Mr. Richardson's neighbors, among whom were the prosecuting witnesses, Harold Hutchings and his wife, Helen Hutchings. The latter, with others, assembled in the back yard adjoining the Richardson property where they viewed the film for about twenty-five minutes. Other people assembled in the back yard opposite Richardson's yard and set off a railroad flare during the showing of the film.

After the showing of the picture the two prosecuting witnesses and others assembled on the sidewalk in front of the Richardson house. Mr. Hutchings stated: "Roughly, I would say there was approximately twenty-five to thirty irritated citizens." At that time, defendant and the Richardsons were on the Richardsons' front porch. Harold Hutchings gave the following version as to what transpired thereafter:

"A. My statement was directed at the Richardsons, who own the home and live there. There was a crowd of people out there. Everybody was talking back and forth. I made the remark that the Richardsons should take their communistic stuff and leave the neighborhood. And with that my wife made a remark too. * * * She was with me, standing right alongside of me with thirty other people. She made the remark that if they didn't like this country, why didn't they go back behind the Iron Curtain in Russia. And with that Mr. Sage shouted: `Well, at least we are not damn Nazi like you are.' And at that point I took in the yard after him. * * * And the police were there and grabbed me and stopped me, and called a patrol wagon.

* * * * * *

"Q. Were the neighbors pretty excited by the time this all happened? A. And pretty angry, yes, sir.

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"Q. Your wife, as far as you could observe from her actions, angry? A. That is right.

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"Q. You were standing on the sidewalk in front of the house, angry, and these remarks were exchanged? A. That is right."

Helen Hutchings testified that after the remarks of her husband, she said:

"if they didn't like the way we lived here, why didn't they go beyond the Iron Curtain and live. And Mr. Sage said, `At least we are not damned Nazis like you.'

"Q. Then what happened? A. My husband started after him, and so did I."

On cross-examination, the witness gave the following testimony:

"Q. Had these goings-on made you angry? A. Yes, sir; they would anybody.

"Q. And you were angry at the time you made this remark about the Iron Curtain? A. Yes, sir.

* * * * * *

"Q. Where was Mr. Richardson at that time? A. Standing on the bottom of the steps.

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"Q. And you addressed your remark in their direction? A. To Mr. Sage and Mr. Richardson, yes, sir."

Later that night, at about 1:00 a. m., the defendant was arrested by the police.

At the conclusion of the State's case, defendant moved that he be discharged on the ground that no case was made against him. The court overruled said motion and, at the conclusion of the trial, found defendant guilty and assessed a fine of $50 in each case.

It is urged that the court erred in failing to sustain defendant's motion to dismiss.

In State v. Rogers, Mo.App., 8 S.W.2d 1073, 1074, the court said:

"The statute makes it a misdemeanor to disturb the peace of an individual by loud and unusual noise or offensive and indecent conversation, etc. The peace of an individual cannot be disturbed, unless the individual is within the peace. State v. Davenport, 221 Mo.App. 37, 297 S.W. 713. To charge that the peace of an individual is willfully disturbed is equivalent to charging that the individual is within the peace. A person not in the peace could be further provoked, but unless he is in `repose of mind and peaceful intent' his peace cannot be disturbed. State v. Davenport, supra."

Mr. Hutchings and his wife, who were the prosecuting witnesses in the case at bar, were members of a mob of irritated and angry citizens who had assembled, first in the back yard adjoining that of the Richardsons', then on the sidewalk in front of the Richardson house. Everybody in this mob was "talking back and forth," and Hutchings and his wife both testified that they were angry, and shouted insults at defendant.

It conclusively appears that neither of the prosecuting witnesses was within the peace. It is our opinion that, under the rule announced in State v. Rogers, supra, defendant was improperly convicted.

The judgment in cause No. 28578 and cause No. 28579 is hereby reversed.

BENNICK, P. J., and ARONSON, J., concur.