Baines v. City of Birmingham
Decision Date | 30 June 1970 |
Docket Number | 6 Div. 41 |
Citation | 46 Ala.App. 267,240 So.2d 689 |
Parties | Jim BAINES v. CITY OF BIRMINGHAM. |
Court | Alabama Court of Criminal Appeals |
George C. Longshore, Birmingham, for appellant.
J. M. Breckenridge and William C. Walker, Birmingham, for the City of Birmingham.
This appellant was convicted for a violation of Section 16--2 of the General City Code of the City of Birmingham, Alabama. A fine of $50.00 was imposed as punishment.
The complaint alleges that Jim Baines on to-wit: 'November 23, 1968, and within the City of Birmingham at, to-wit: Woodrow Wilson Park, did disturb the peace of others by profane language, to-wit: did use the expression 'God Damn,' contrary to and in violation of Section 16--2 of the General City Code of Birmingham, of 1964.'
Section 16--2 of the General City Code of Birmingham reads:
'Any person who disturbs the peace of others by violent or offensive conduct, or carriage, or by loud or unusual noises, or by profane or obscene or offensive language, or any person who shall commit any act or diversion causing or tending to a breach of the peace, or any person who shall be guilty of lewd, immoral or indecent conduct, or any person who shall use any obscene or filthy language in a public place, or any person who shall commit any act or diversion tending to or calculated to bebauch the morals of any person, shall be deemed guilty of disorderly conduct, and, upon conviction, shall be punished as provided in section 1--6.'
The defendant filed motion to quash the complaint, which motion was denied, whereupon a demurrer was filed and was overruled by the court. The motion and demurrer, in identical language, read, in pertinent part:
The refusal of the trial court to quash the complaint is not reviewable on appeal. White v. City of Birmingham, 41 Ala.App. 181, 130 So.2d 231; Phifer v. City of Birmingham, 42 Ala.App. 282, 160 So.2d 898.
The demurrer was properly overruled. The ordinance follows the language of Section 119(1), Title 14, Code of Alabama, 1940. We have held that the statute is not unconstitutional as a deprivation of free speech. Abernathy v. State, 42 Ala.App. 149, 155 So.2d 586, reversed on other grounds, 380 U.S. 447, 85 S.Ct. 1101, 14 L.Ed.2d 151. Our only concern here is with the validity of the provision of the ordinance denouncing the offense of disturbing 'the peace of others by profane language' and we hold that this provision of the ordinance is not so vague and uncertain as to be violative of the Fourteenth Amendment to the Constitution.
At the conclusion of the City's evidence the defendant moved to 'suppress or quash the evidence on the grounds that they have failed to make out a case, and that they have not proved that a breach of the peace did occur in this case.' The motion was denied.
The evidence for the City tends to show that on the afternoon of November 23, 1968, the defendant was speaking over a public address system on a platform in Woodrow Wilson Park in Birmingham. The platform was on the south side of the park where 20th Street comes into 7th Avenue. Defendant was 20 to 25 feet from 20th Street. The loud speaker was facing 20th Street. A few people were on the platform with defendant and forty or fifth spectators, some of whom were women and teenagers, were across the street on apartment balconies and other locations in the vicinity. The speaker was loud and could be heard some distance.
Officer James A. Gray's version of defendant's conduct was as follows:
* * *
'He made mention of some cars that were parked around with license tags in violation, and asked us why didn't we arrest them, and asked us why we didn't put all of these drunk Shriners in jail.'
When asked to describe defendant's speech, the witness said:
Officer Gray and Sims and Mr. Jack Martin Barlow testified the defendant said, 'Run, god damnit, run.' Officer Reed Wayne Harper, and Mr. Joe Aloia, testified the defendant said, 'Run, god damn you, run.'
The defendant testified his group was holding a demonstration or rally at the park in support of the Czechoslovakian student's protest of the Russian invasion of Czechoslovakia; that later in the afternoon he took the loud speaker and was making remarks critical of the police; that he said the police In the course of these remarks he noticed a fight or shoving match going on. He said a drunken Shriner was attacking one of his friends down the street and he and other people asked the police several times to break it up. Then he said, 'If the police won't do anything about it we will have to try to stop it ourselves, and they got up and started, you know, standing around and moving in that direction. They didn't move, you know, directly towards the fight. I was extremely angry. My friend was being beaten up. So. I said, 'Run god damnit, run."
Counsel for defendant urges that the court erred in overruling the motion to because the evidence failed to show that a disorder occurred or that anything the defendant said caused a breach of the peace. In Abernathy v. State, supra, we held that to constitute a breach of the peace it is unnecessary to prove that the peace has actually been broken, citing People v. Kovalchuck, Co.Ct., 68 N.Y.S.2d 165, People v. Ripke, Co.Ct., 115 N.Y.S.2d 590.
In Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, the court said:
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