Lucas v. State
| Decision Date | 03 March 1975 |
| Docket Number | No. CR,CR |
| Parties | Fred Carroll LUCAS and Ronnie Ray Lucas, Appellants, v. STATE of Arkansas, Appellee. 73--31. |
| Court | Arkansas Supreme Court |
Fred A. Newth, Jr., Little Rock, for appellants.
Jim Guy Tucker, Atty. Gen., by Charles A. Banks, Asst. Atty. Gen., Little Rock, for appellee.
We have reconsidered this case in the light of Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), as directed by mandate of the United States Supreme Court in its one sentence decision of April 15, 1974. The dissenting opinion of Mr. Justice Blackmun, in which the Chief Justice and Mr. Justice Rehnquist joined, sets out the facts in more detail than we did in our original opinion, Lucas v. State, 254 Ark. 584, 494 S.W.2d 705. The facts are not germane to the issue now before us and they will not be recited again here.
The statute under which the appellants were convicted, Ark.Stat.Ann. § 41--1412 (Repl.1964), was Act 30 of the Arkansas Legislature for 1909. It was entitled 'An Act to better protect the public peace,' and it has served its purpose for more than 50 years without question as to its constitutionality until now.
We find no comparison between Ark.Stat.Ann. § 41--1412 (Repl.1964) and the New Orleans Municipal Ordinance 828 M.C.S. § 49--7 struck down as unconstitutional in Lewis v. City of New Orleans, supra. The New Orleans Ordinance provided as follows:
'It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'
Aside from the ambiguity in the word 'opprobrious,' as pointed out in Lewis, the New Orleans Ordinance would have made it unlawful and a breach of the peace to curse, revile or use obscene language toward or with reference to any member of the city police while in the actual performance of his duty regardless of when, where, or to whom the language was used or addressed. Furthermore, the New Orleans Ordinance provided a one sided violation. It was apparently designed to protect the police force against unguarded and overemphatically expressed criticism of its members in the performance of their duty regardless of when, or where, or to whom the language was addressed, and regardless of whether the language arose from incitement, anger or frustration. In other words, the New Orleans Ordinance protected members of the police force from the use of the described language toward, or with reference to them, but did not protect the public from the same language used by any member of the city police while in the performance of their duty even when addressed directly to a member of the public who might be involved. Such is not the wording, effect or intent of Ark.Stat.Ann. § 41--1412 (Repl.1964). Mr. Justice Powell concurring in the result reached in Lewis v. City of New Orleans, supra, clearly sets out the constitutional deficiencies in the New Orleans Ordinance, but we are of the opinion its deficiencies do not apply to Ark.Stat.Ann. § 41--1412 (Repl.1964) as interpreted and applied by the courts of this state.
Under Ark.Stat.Ann. § 41--1412 (Repl.1964) the language must be profane, violent, vulgar or abusive and must be directed toward or about any other person in his presence or hearing. Such language must in its common acceptation be calculated to arose to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or assault. When a police officer is involved, this statute applies to language used by a police officer, as well as to the language used to a police officer. It is a matter of common knowledge that many assaults, both simple and aggravated, and also many homicides, have their origin in profane, violent, vulgar, abusive or insulting language addressed to or about another person in his presence or hearing. It is also common knowledge that such language used by members of the police, when addressed to a member of the public, results in resisting arrest and more important, results in a loss of respect for law and order.
In our original opinion, Lucas v. State, supra, we attempted to distinguish Ark.Stat.Ann. § 41--1412 (Repl.1964) from the Georgia statute, § 26--6303, struck down in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). We are still of the opinion that 'opprobrious words or abusive language tending to cause a breach of the peace,' as was used in the Georgia statute, is much broader than the 'profane, violent, vulgar, abusive or insulting language . . . which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault,' as used in the Arkansas statute, § 41--1412, supra. Unlike the standard fixed by the jury in applying the Georgia statute as was exemplified in the case of Fish v. State, 124 Ga. 416, 52 S.E. 737, where the Georgia Supreme Court held that a jury question was presented under the statute by the language: 'You swore a lie,' as pointed out in Gooding, supra, this court (Arkansas Supreme Court) narrowed the language of the Arkansas statute as early as 1918 in the case of Holmes v. State, 135 Ark. 187, 204 S.W. 846. In Holmes the prosecuting witness, Hatch, was very much offended at the conduct of some boys in the community frequently calling him by the nickname 'Taters' and other similar nicknames. In the case the trial court, among other instructions, gave one to the jury submitting to them for determination the question of whether or not the language used was such as in its common acceptation was calculated to arouse a person to anger and cause a breach of the peace. In reversing the judgment of the trial court and dismissing the charges, this court said:
'Counsel for appellant insist that the instruction should not have been given and that the evidence was not sufficient to warrant a conviction, in that the language used by the boys does not come within the statute. It will be observed that the statute defines the character of language constituting the offense as 'profane, violent, abusive or insulting language * * * which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace,' etc. The language used must be in its nature 'profane, violent, abusive or insulting' and it must be of that character which 'in its common acceptation is...
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