Moore v. State

• Decision Date: 23 August 1974
• Parties: Ralph MOORE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 604

519 S.W.2d 604

Ralph MOORE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Aug. 23, 1974.

Certiorari Denied by Supreme Court Feb. 3, 1975.

John Alley, Hixson, for plaintiff in error.

David M. Pack, Atty. Gen., John B. Hagler, Jr., Asst. Atty. Gen., Nashville, Edward E. Davis, Dist. Atty. Gen., Chattanooga, for defendant in error.

OPINION

DWYER, Judge.

The plaintiff-in-error, referred to here, as at the trial level, as the defendant, was found guilty by a jury of violating T.C.A. 39--4301, with resulting punishment of confinement for not more than two years. The learned trial judge, in pronouncing judgment on the verdict, characterized the charge, under which the jury found the defendant guilty, as extortion.

There is some question as to whether or not the offense proscribed by T.C.A. 39--4301 and extortion are one and the same. We feel that the defendant in this case was properly convicted and sentenced. T.C.A. 39--4301 is found under Chapter 43 of the Code and is the only section in the chapter. The chapter title refers to the offenses listed thereunder as 'Threats and Extortion.' In Furlotte v. State, 209 Tenn. 122, 350 S.W.2d 72, T.C.A. 39--4301, under consideration here, was construed by our Supreme Court in the following language found at page 128, at page 74 of 350 S.W.2d:

'. . . The part of the quoted Section down to the word 'another' deals with what Threats constitute an extortion provided these threats or actions are done 'with intent thereby to Extort any money, property, or pecuniary advantage whatever,' . . .' (emphasis added)

In other words, as the writer views the statute, the gravamen of the condemned act is the threat coupled with the intent to extort. See Wharton's Criminal Law and Procedure, Anderson, Vol. 3, § 398, p. 796.

The foremost question in this record is whether or not what the defendant designates as 'peaceful' picketing may be condemned by this statute, see T.C.A. 39--4301, or as stated by the attorney general: Can lawful means (picketing) be employed to achieve an illegal end (personal payoff)?

A look to the facts in this record amply illustrates, we think, the manner by which means (picketing), legal and lawful in themselves, can be rendered unlawful by the ends for which they are undertaken.

On July 12, 1972, the defendant, accompanied by a codefendant, who was acquitted, approached the manager of the Red Food Store in Chattanooga. He requested of the manager a donation for the survival program of the Black Panther Party of which the defendant is a coordinator. The manager told them that he was without authority to authorize donations and that they must see a Mr. Blevins, president of the company. The defendant left and, in a few minutes, returned, inquiring as to whom it was that they were to see. After they were again informed and on parting, the defendant related, 'Well, I guess we'll have to close them up.' On July 18, the defendant and codefendant approached another officer of the corporation and requested a donation for the program. When told that they would have to make an appointment to see Mr. Blevins, they related that they had to have the donation before a rally that was to be held on August 5. The picketing commenced on August 10, 1972. The proof further shows that the defendant and two codefendants, with a few others, manned a picket line. There were instances in which they would approach cars coming onto the food store lot. Some of the cars left and others proceeded into the store parking area.

At the trial, Mr. Blevins related that he had never been approached for a contribution.

The defendant testified, and denied having made the statement about closing the place up.

From these facts, it is apparent that the purpose of the picketing was to harm the business interests of the food store. The defendant had no legitimate relationship with the store whereby this purpose could be approved under the protection of the First Amendment. The legend on the placard which he carried revealed that his intent was to pressure the store into contributing money to his cause. Also, the statement, 'I guess we'll have to close them up,' is a circumstance upon which the jury could determine the maliciousness of the threat and the intent behind the picketing. All of this, taken together, indicates a subtle coercion, or threat, see Wharton's Criminal Law & Procedure, supra, which is not and cannot be constitutionally protected.

It is apparent that the Red Food Store should have a free and unencumbered right not to contribute, in a free system, secure in the knowledge that no retribution will be forthcoming under the guise of constitutional protection.

It is true that the citizenry, under the guarantees of the First Amendment, has the lawful right to assemble and to engage in peaceful demonstrations (picketing). See Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. The argument is advanced that the defendant had the right to peacefully picket under constitutional safeguards and that, therefore, he could not be guilty of extortion. However, not every constitutional guarantee per se may be used as a shield to protect illegal activity. See Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Harden v. State,188 Tenn. 17, 216 S.W.2d 708; Gaskin v. State, Tenn., 490 S.W.2d 521; Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295. Justice Oliver Wendell Holmes best exemplified this by his contention that the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470.

In giving approval to the New York decision, People v. Dioguardi, 8 N.Y. 2d 260, 203 N.Y.S.2d 870, 168 N.E.2d 683, the United States Supreme Court stated, '. . . when the objectives of the picketing change(s) from legitimate labor ends to personal payoffs, then the actions (become) extortionate.' United States v. Emmons, 410 U.S. 396, 93 S.Ct. 1007, at footnote 16, p. 1013, 35 L.Ed.2d 379.

It is pointed out at 93 A.L.R.2d 1284, 1295, '. . . a lawful or proper purpose is a condition of the right of peaceful nonlabor picketing.' Further, the United States Supreme Court has spoken in very similar language:

'Picketing is not beyond the control of a State if . . . the purpose which it seeks to effectuate gives ground for its disallowance.' Hughes v. Superior Court, 339 U.S. 460, 465, 466, 70 S.Ct. 718, 721, 94 L.Ed. 985.

In this record it is apparent to us that the activity of Moore in engaging in a peaceful demonstration is nothing more than a facade to cover his illegal act. See Swain v. State, 219 Tenn. 145, 154, 407 S.W.2d 452.

We accordingly reject as completely unfounded by the evidence the contention that the defendant was convicted solely because he was a member of an unpopular party. The proof reflects an acquittal of two placard carrying codefendants who made no vocal threats and who offered no defense at the trial. The jury's recommendation of clemency for the defendant which was rejected by the court also militates against this contention.

We further find no merit in the contention that the trial court should have quashed the indictment because its wording as to 'feloniously picketing', is constitutionally incongruous and does not adequately inform the defendant of the charge against him. This isolated statement alone may support defendant's contention; however, an indictment should not be read out of context, but rather as a whole, in determining whether or not it charges an offense with sufficient notice to the accused for the preparation of a defense. The wording of the indictment is as follows:

'The Grand Jurors for the State aforesaid, being duly summoned, elected, impaneled, sworn and charged to inquire for the body of the County aforesaid upon their oaths present: That Gerald Edwards, Ray Lindsey, Ralph Moore, and Madonna Storey heretofore on the 10th day of August, 1972, in the County aforesaid, did unlawfully, and feloniously picket the Red Food Store, Incorporated, a corporation, by continually obstructing the entrance to the store by walking back and forth in front thereof each displaying a sign; said sign of Ray Lindsey reading 'Boycott don't shop here. Red Food Store must support and donate every week a small minimal amount to our Community Free Sickle Cell anemia testing program, a peoples survival program', said sign of Ralph Moore reading 'Boycott don't shop here. Red Food store must support and donate every week a small minimal amount to our Free Day Care for working mothers program, a peoples survival program', said sign of Madonna Storey reading 'Boycott don't shop here. Red Food Store must support and donate every week a small minimal amount to our Free Food Program, a peoples survival program', said sign of Gerald Edwards reading 'boycott don't shop here. Red Food Store must support and donate every week a small minimal amount to our Free Breakfast for school childrens program, a peoples survival program', and such signs were calculated to cause injury to the reputation and property of the Red Food Store, Incorporated, a corporation, with the intent to extort money, property, and pecuniary advantage and to compel the Red Food Store, Incorporated, a corporation, to contribute money or property to said defendants against the will of the Red Food Store, Incorporated, a corporation, against the peace and dignity of the State.'

We feel that this sufficiently gave defendant notice of the nature of the charge against him under the statute. See Jordan v. State, 156 Tenn. 509, 514, 3 S.W.2d 159. More is not required. We find no merit in this assignment.

Lastly, it is urged that the statute is unconstitutional as being vague and overbroad. He argues that the fact that the officers delayed the...