Mercer v. Winston

• Decision Date: 08 October 1973
• Citation: 214 Va. 281,199 S.E.2d 724
• Parties: Jimmy M. MERCER v. Andrew J. WINSTON, Sergeant of the City of Richmond.
• Court: Virginia Supreme Court

Page 724

199 S.E.2d 724

214 Va. 281

Jimmy M. MERCER v. Andrew J. WINSTON, Sergeant of the City of Richmond.

Supreme Court of Virginia.

Oct. 8, 1973.

S. W. Tucker, Richmond (Henry L. Marsh, III, Hill, Tucker & Marsh, Richmond, on brief), for plaintiff in error.

Barry S. Comess, Asst. Commonwealth's Atty., City of Richmond (Jose R. Davila, Jr., Commonwealth's Atty., City of Richmond, on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARRISON, Justice.

Jimmy M. Mercer was convicted by a jury of violating the provisions of Code § 18.1--255 (breach of the peace) and his punishment was fixed at a fine of $50 and costs. ¹ We denied Mercer an appeal from the judgment of the court imposing the sentence. Thereafter he was committed to the respondent, Andrew J. Winston, Sergeant of the City of Richmond, for nonpayment of the fine. Mercer then filed a petition for a writ of habeas corpus, and is here on a writ of error to the action of the lower court dismissing the petition.

Code § 18.1--255 provides:

'If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a misdemeanor, and on conviction fined in any sum not less than two dollars and fifty cents nor more than five hundred dollars, in the discretion of the jury or the judge trying the case without a jury.'

The petitioner argues that the statute is on its face unconstitutionally vague and overbroad under the First and Fourteenth Amendments to the Constitution of the United States. Our decision on this issue is controlled by Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).

In Chaplinsky the defendant was convicted of violating New Hampshire's breach of the peace statute. ² Chaplinsky, a member of the sect known as Jehovah's Witnesses, was charged with making the following statement to the complaining witness: 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.' Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire affirmed and limited the statutory language 'offensive, derisive or annoying word' to 'fighting' words:

'(N)o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. . . .

'The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . .

'The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee . . .' State v. Chaplinsky, 91 N.H. 310, 313, 320--321, 18 A.2d 754, 758, 762 (1941).

On appeal to the Supreme Court, and in view of that authoritative construction, Mr. Justice Murphy said:

'We are unable to say that the limited scope of the statute as thus construed contravenes the constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. (Citing cases.) This conclusion necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. (Citing case.)

'Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations 'damn racketeer' and 'damn Fascist' are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.' 315 U.S. 573--574, 62 S.Ct. 770.

Thirty years after its decision in Chaplinsky the Supreme Court considered Georgia's breach of the peace statute ³ in Gooding v. Wilson, Supra, and by a divided court held it to be unconstitutionally vague and overbroad under the First and Fourteenth Amendments. At the same time it distinguished Chaplinsky and observed: 'Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish 'fighting' words under carefully drawn statutes not also susceptible of application to protected expression . . ..' 405 U.S. at 523, 92 S.Ct. at 1106.

The court took exception to the words 'opprobrious' and 'abusive' found in the Georgia statute, and said that the dictionary definitions of these words gives them greater reach than 'fighting' words. It noted that Webster's Third New International Dictionary (1961) defined 'opprobrious' as 'conveying or intended to convey disgrace', and 'abusive' as including 'harsh, insulting language'. The court examined a number of Georgia appellate decisions and found that the statute had not been limited in application, as in Chaplinsky, to words that 'have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed'.

The Virginia statute, Code § 18.1--255, addresses itself to a direct confrontation of individuals in which one curses or abuses the other or uses violent abusive language concerning the other or his or her relations under circumstances which would precipitate an immediate, forceful and violent reaction by a reasonable person. It envisions words of a kind and nature spoken under such circumstances as by their utterance reasonably tend to provoke a breach of the peace.

Code § 18.1--255 serves a valid and proper purpose for it is aimed at preventing personal, face-to-face, abusive and insulting language likely to provoke a violent reaction and retaliation, and we so construe the statute. We limit its application to words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. In light of such construction the statute is not constitutionally vague and overbroad under the First and Fourteenth Amendments to the United States Constitution.

Our holding is not inconsistent with Taylor v. Commonwealth, 186 Va. 626, 43 S.E.2d 857 (1947), Byrd v. Commonwealth, 158 Va. 897, 164 S.E. 400 (1932) or Byrd v. Commonwealth, 124 Va. 833, 98 S.E. 632 (1919), which also involve Virginia's breach of the peace statute. In Byrd (1932), the defendant became enraged upon returning home and not finding his wife and children. After locating the children but not the wife, he cursed and said 'I'll kill her just as soon as I see her'. In a senseless fury he broke up his own furniture, armed himself with a repeating shotgun and went to a neighbor's home where he proceeded to order the occupants of an automobile out and shot at the car. The rampage continued until he ultimately shot at a person,...