Skelton v. City of Birmingham

• Decision Date: 24 August 1976
• Docket Number: 6 Div. 988
• Citation: 342 So.2d 933
• Parties: James SKELTON v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Criminal Appeals

Page 933

342 So.2d 933

James SKELTON v. CITY OF BIRMINGHAM.

6 Div. 988.

Court of Criminal Appeals of Alabama.

Aug. 24, 1976.

Rehearing Denied Oct. 5, 1976.

Winston B. McCall, Jr., Birmingham, for appellant.

Charles T. Bradshaw and William C. Walker, Asst. City Atty., Birmingham, for appellee.

DeCARLO, Judge.

Insulting a peace officer; fine, one hundred dollars.

On March 18, 1975, the City of Birmingham through its prosecuting attorney, filed a complaint in Jefferson County Circuit Court, charging appellant: '. . . did make an insulting remark to W. P. Curry, a law enforcement officer of the City of Birmingham, while said officer was engaged in the active discharge of his lawful duties in this: the said James Skelton referred to the officer as a 'Big Shit' . . .'

To this complaint, the appellant filed a demurrer alleging the statute upon which the complaint was based was vague, indefinite, overbroad, and a violation of his constitutional rights under the First and Fourteenth Amendments.

The demurrer was overruled and on the consent of the parties, trial was had before the judge without the benefit of a jury.

This appeal brings into focus the facial constitutionality of § 36--56 of the General Code of Birmingham of 1964, as it adopts the words and language of § 374(18) of T. 14, Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp. to Vol. 5.

Section 374(18) of T. 14, supra provides:

'Whenever any peace officer or other law-enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to make any insulting remark, either to or about such officer or to make any motion, or gesture calculated to insult or humiliate such officer because of his performing such duty or duties, or to threaten harm or injury to such officer in performance of his duty or duties, and any person committing any act made unlawful hereunder shall be guilty of a misdemeanor . . .'

Appellant's conviction thereunder, resulted from the following facts:

On November 3, 1974, officers William P. Curry and Thomas W. Cater were employed by the City of Birmingham Police Department and working the 11 P.M. to 7 A.M. shift. These officers were riding in a marked police cruiser, equipped with police insignia and blue light on top.

Approximately 6:45 A.M., Officer Curry drove the police car into an alley facing west. The alley extended east and west and crossed a sidewalk paralleling Birmingham's 20th Street which ran north and south. At that point where the car entered the alley, the sidewalk crossed the alley and the car was stopped in the path of the sidewalk. Curry left the car and walked to a news stand in front of 'Tutwiler Drug', which is in a building adjacent to the alley. After purchasing a newspaper, he started back to the car. At this time, the appellant who was standing on the north side of the alley, made the following statement:

"Are you big shits going to move your car, or are you going to make me walk around?"

Curry stated that the remarks were made in his direction. After the statement was made, Curry walked around to the rear of the car and arrested the appellant.

Officer Cater stated that on the above date, he was working as Officer Curry's partner and testified to the same facts, with the exception that he could not tell to whom the remark was directed. Cater said it was his impression, the statement was something to the effect:

'Are you big shits going to move or am I going to have to go around.'

The appellant did not testify or produce any evidence in his behalf and the case went to the trier of the fact on the testimony of the officers alone.

Appellant cites several United States Supreme Court decisions in support of his argument that the statute in question is so vague and broad it violates the freedom of speech guaranteed by the First Amendment. Among the cases cited to us, the prominent ones are: Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214; and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408. However, we find the answer to this contention in the case of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.

In Chaplinsky, supra, the United States Supreme Court upheld the following ordinance against the charge of vagueness:

"No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation."

The provocative remarks used by Chaplisky were addressed to a town marshal and were as follows:

"You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists' . . .'

In affirming Chaplinsky's conviction by the state court, the United States Supreme Court recognized that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional questions. They include the lewd, obscene, profane, the libelous, and the insulting and, or fighting words.

As was stated in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213:

'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.'

The United States Supreme Court concluded that the ordinance as construed by the state court in Chaplinsky, supra, was limited to verbal acts uttered under such circumstances as were likely to cause the breach of peace. The court held that the words used by Chaplinsky were:

'. . . epithets likely to provoke the average person to retaliation, and thereby cause a breach of peace.'

The appellant relies heavily on the case of Gooding v. Wilson, supra, where a Georgia statute was struck down because it was overbroad in its application and susceptible of First Amendment violations. The Georgia statute struck down in Gooding v. Wilson, reads as follows:

"Any person who shall, without provocation, use to, or of one another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor."

In Gooding v. Wilson, supra, the Supreme Court of the United States, said that the state courts have failed to narrow the application of the statutes to fighting words, which by their very utterance will tend to incite an immediate breach of the peace and, therefore, the statute was facially overbroad, vague and unconstitutional under the First and Fourteenth Amendments.

To emphasize this particular point, the court used the following language:

'Because earlier appellate decisions applied § 26--6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt 'measured by common understanding and practice' does not limit the application of § 26--6303 to 'fighting' words defined by Chaplinsky. Rather, that broad standard effectively 'licenses the jury to create its own standard in each case.' Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066, (1937). Accordingly, we agree with the conclusion of the District Court, '(t)he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application.'"

The standard for applying the Georgia statute was stated in Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), there the Georgia Supreme Court held that a jury question was presented by the language: "You swore a lie." In Fish v. State, the standard set for the jury by the state court under the statute was as following:

'On the trial of one indicted for using opprobrious words and abusive language, it is for the jury to determine whether under all the facts and circumstances the words used were of such character as...