Hess v. State

Decision Date22 May 1973
Docket NumberNo. 1271S372,1271S372
Citation297 N.E.2d 413,260 Ind. 427
PartiesGregory HESS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

F. Thomas Schornhorst, David Colman, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

This is an appeal by Gregory Hess from a conviction for disorderly conduct. Hess was tried in City Court of Bloomington without a jury and found guilty. He appealed and the cause was transferred to the Monroe Superior Court for a trial de novo. The cause was submitted upon stipulated facts. Hess was again found guilty and assessed a fine of one dollar.

The stipulation to the evidence discloses the following:

Early in the afternoon of May 13, 1970, units of the Monroe County Sheriff's Department and the Bloomington City Police were summoned to aid Indiana University officials and campus police in removing certain demonstrators who had been blocking the doors of Bryan Hall in conjunction with protests against the war in Indochina. At that time there were some 200 to 300 persons assembled in front of the Hall. In the course of the police activity, two of the demonstrators were placed under arrest and put in a patrol car, at which time 100 to 150 of the persons present went into the street in front of the Hall in an effort to block the progress of the patrol car. It was then necessary for the police officers to clear the street of such persons to permit the passage of the car. When they did not respond to the verbal directions of the police, it was necessary for the officers to forcefully remove the persons from the street.

While in the process of removing the demonstrators from the street, Monroe County Sheriff Thrasher heard appellant say in a loud voice, while in a position with his back to the police and facing the bulk of the demonstrators, one of the following two phrases: 'We'll take the fucking street later,' or 'We'll take the fucking street again.' Two female witnesses heard appellant use the phrase in a loud voice but testified that he did not appear to be exhorting the crowd to go back into the street.

Appellant first argues that IC 1971, 35--27--2--1, Burns' Ind.Stat.Ann., 1972 Supp., § 10--1510, is unconstitutional as applied in this case. The statute in question provides as follows:

'Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars ($500) to which may be added imprisonment for not to exceed one hundred eighty (180) days. (Acts 1943, ch. 243, § 1, p. 685; 1969, ch. 161, § 1, p. 329.)'

It is appellant's contention that as he was exercising his right of free speech, the statute cannot be applied to him, unless his speech: (1) is obscene within the standard of Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; (2) amounts to fighting words within the meaning of Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; (3) amounts to a public nuisance in that privacy interests are invaded; or (4) advocates law violation or use of force and is directed to produce imminent lawless action and is likely to do so. Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284.

Focusing on the last of these criteria, appellant argues that the State did not show a 'clear and present danger' of violence. Terminiello v. City of Chicago (1949), 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. The Supreme Court has recently revised its formula for determining when a statute infringes upon the right of free speech. In Brandenburg v. Ohio (1969), 395 U.S. 444, 447--448, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430, 434, the Court said:

'(T)he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'

In Whited v. State (1971), Ind., 269 N.E.2d 149, 152, 25 Ind.Dec. 438, 442, this Court followed a similar concept requiring a 'tendency to lead to violence.'

In the case at bar, in light of the immediately preceding illegal conduct of the group in blocking traffic, the calling in a loud voice to those already emotionally upset that they will repeat the same illegal acts of blocking traffic is certainly a threat and a challenge to fight the police who are then in the street attempting to maintain order. The statement of appellant surpassed the theoretical advocation of violence, Noto v. United States (1961), 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836. The trial court was justified in finding that the statement was intended to incite further lawless action on the part of the crowd in the vicinity of appellant and was likely to produce such action.

Appellant also argues that the record is devoid of any evidence that could serve to bring appellant's conduct within any permissible application of the statute. In this argument appellant contends that: (1) he spoke no more loudly than others at the scene; (2) the neighborhood was disturbed before he spoke; (3) his words were not offensive; and (4) his language did not constitute 'fighting words.' That others were acting in a loud manner and that the area was already disturbed are of no import. The participation of others relates only to their guilt, not to the appellant's. Although the vocabulary appellant used was tasteless and moronic, it has nothing to do with whether the evidence shows disorderly conduct. If the word is stricken from the evidence, the record still abundantly supports the finding of the trial court. As above noted under the circumstances, the trial court was justified in finding that appellant's statement did violate the statute.

Appellant next argues that IC 1971, 35--27--2--1, Burns' Ind.Stat.Ann., 1972 Supp., § 10--1510, is unconstitutional as overbroad and vague. Although the doctrines are often joined in discussion, they are distinct. This Court has previously held that a statute is not unconstitutional as vague if it is capable of intelligent construction and interpretation by persons who possess only ordinary comprehension, if its language conveys an adequate description of the prohibited evil. Stanley v. State (1969), 252 Ind. 37, 245 N.E.2d 149, 16 Ind.Dec. 662. Words such as 'loud,' 'unusual,' and 'offensive' are relative terms and are to be interpreted by an ordinary man under the circumstances with which he is faced. See Whited v. State (1971), Ind., 269 N.E.2d 149, 25 Ind.Dec. 438. The statute must be construed as a whole; the words cannot be seen to exist in a vacuum. Cheaney v. State (1972), Ind., 285 N.E.2d 265, 32 Ind.Dec. 42. In the case at bar we have already pointed out that the appellant clearly brought himself within the statute in that his speech and conduct was offensive behavior, threatening, traducing and challenging the police officers. Other conduct such as the uttering or causing of loud and unusual noises must be such as to disrupt the peaceful character of the neighborhood to an extent that it becomes a public nuisance. With the above in mind, it cannot be said that an ordinary individual would not have fair notice as to what is permissible or not permissible under the statute.

A penal statute is overbroad if its sanctions are applicable to activities that are protected by the constitution. Grody v. State (1972), Ind., 278 N.E.2d 280, 29 Ind.Dec. 214. Appellant argues that his right to free speech is curtailed by the statute in question. This Court has previously held, however, that in cases of pure speech, this statute can only be applied if the speech has a tendency to lead to violence. Whited, supra; Miller v. State (1972), Ind., 279 N.E.2d 222, 29 Ind.Dec. 398. Thus interpreted, the statute does not infringe upon the right to free speech, and is not overbroad.

Appellant lastly argues that the form affidavit used failed to give him notice of the charge against him. Appellant filed a motion to quash in the city court where it was overruled. Apparently, a new motion to quash was not filed in Superior Court. The record does show as part of the Statement of the Case on Appeal from City Court the following:

'The issues raised on this appeal are as follows: 1. Whether the judge of the City Court erred in overruling defendant's motion to quash the affidavit . . ..'

The Superior Court did not understand that statement to serve as a refiling, apparently, for there is no ruling on the motion. Appeals from justice of the peace courts and city courts to the circuit or superior courts have long been recognized as trials de novo. They are not a review of the proceedings had before the inferior court. Hensley v. State (1969), 251 Ind. 633, 244 N.E.2d 225, 16 Ind.Dec. 479. Thus, no issue is presented for this Court's consideration.

The trial court is affirmed.

ARTERBURN, C.J., concurs.

PRENTICE, J., concurs with opinion in which DeBRULER, J., concurs.

HUNTER, J., dissents with opinion.

PRENTICE, Justice (concurring).

Although I dissented in the case of Whited v. State (1971), Ind., 269 N.E.2d 149, my dissatisfaction therein was not with the statement of the law by the majority but rather with its application to the facts of that particular case. In the case at bar, the evidence discloses to me that the conduct of the appellant was illegal, as tested by the standards of that case and also by the 'clear and present danger' test of Brandenburg v. Ohio (1969), 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 and Terminiello v. Chicago (1949), 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 and the 'immediate threat'...

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