State v. Albert

• Decision Date: 03 November 1971
• Docket Number: No. 19308,19308
• Parties: The STATE, Respondent, v. Gerald ALBERT, Appellant.
• Court: South Carolina Supreme Court

Page 605

184 S.E.2d 605

257 S.C. 131

The STATE, Respondent, v. Gerald ALBERT, Appellant.

No. 19308.

Supreme Court of South Carolina.

Nov. 3, 1971.

Matthew J. Perry, of Jenkins, Perry & Pride, Columbia, and Fred Henderson Moore, Charleston, for appellant.

Solicitor Leonard A. Williamson, Aiken, Atty. Gen., Daniel R. McLeod and Asst. Atty. Gen. Everett N. Brandon, Columbia, for respondent.

MOSS, Chief Justice.

Gerald Albert, the appellant herein, and thirty-five other persons were indicted by the Grand Jury of Bamberg County and charged with the offense of riot. The indictment charged that Gerald Albert, and his co-defendants, on April 28, 1969:

'did willfully, riotously, routously and tumultously assemble and meet together and disturb the peace of the State, and being so then and there make great riot, tumult and disturbance, and then and there unlawfully, riotously, routously and tumultously remained and continued together making such noise, tumults and disturbances for a great space of time to the great terror and disturbance of peaceful citizens there residing and passing and repassing; and did commit a felony, to wit, the crime of riot, in that they did willfully, maliciously and unlawfully assemble, being more than three in number, upon the campus of Voorhees College, near the Town of Denmark, in the County of Bamberg, with firearms and deadly weapons, and did riotously, tumultously and violently breach the peace by taking possession with force and violence of the Voorhees College administration building and library, science building, dining hall, and other buildings, and force those persons lawfully entitled to be present therein to depart at gunpoint to their terror and to the terror of the people, against the form of the statute in such case made and provided, and against the peace and dignity of the State.'

This case came on for trial at the 1970 September term of the Court of General Sessions for Bamberg County. When the case was called for trial, the appellant moved to quash and dismiss the indictment on the ground:

'that it's vague, unconstitutionally vague, indefinite, imprecise, and does not afford or accord the defendant fair notice of what charge he is to meet, and such is violative of his rights to due process and legal protection afforded him by the Fourteenth Amendment of the United States Constitution.'

The motion of the appellant to quash the indictment on the grounds stated was denied. The case was then tried and the appellant was found guilty as charged. He now appeals to this court alleging, (1) error on the part of the trial judge in refusing to quash the indictment on the grounds stated; (2) error in refusing to enter a judgment of acquittal and a verdict of not guilty; and (3) error in the admission of certain exhibits.

The first question for determination is whether our common law definition of riot is unconstitutionally vague.

The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional. State v. Zwicker, 41 Wis.2d 497, 164 N.W.2d 512, 32 A.L.R.3d 531.

Our court has defined riot as follows:

'A riot is defined to be a tumultuous disturbance of the peace by three or more persons assembled together of their own authority, with the intent mutually to assist each other against anyone who shall oppose them, and putting their design into execution in a terrific and violent manner, whether the object was lawful or not.' State v. Connolly, 3 Rich. 337; State v. Brazil, Rice 257; State v. Cole, 2 McCord 117; State v. Johnson, 43 S.C. 123, 20 S.E. 988; and State v. Greene, 255 S.C. 548, 180 S.E.2d 179.

In the case of Abernathy v. Conroy, 4 Cir., 429 F.2d 1170, the plaintiff asserted that the South Carolina common law definition of riot offends the First and Fourteenth Amendments of the Constitution because of vagueness. The Fourth Circuit Court of Appeals rejected this contention and held that the crime of riot as defined in our cases is not unconstitutionally vague. We cited the Abernathy case with approval in State v. Greene, supra. We conclude that there is no merit in the appellant's contention that our common law definition of riot is unconstitutionally vague.

The next question for decision is whether the trial court erred in refusing to grant the motion of the appellant for a directed verdict of not guilty.

In deciding whether the court erred in not directing a verdict in favor of the appellant, we must view the testimony in the light most favorable to the State. When a motion for a directed verdict is made, the trial judge is concerned with the existence or nonexistence of evidence, not with its weight, and although he should not refuse to grant the motion where the evidence merely raises a suspicion that the accused is guilty, it is his duty to submit the case to the jury if there is evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. State v. Rayfield, 232 S.C. 230, 101 S.E.2d 505; State v. Hyder, 242 S.C. 372, 131 S.E.2d 96; State v. Wells, 249 S.C. 249, 153 S.E.2d 904; and State v. Jordan, 255 S.C. 86, 177 S.E.2d 464.

Voorhees College is located at Denmark in Bamberg County. On April 28, 1969, at noon, several armed persons entered the administration and library buildings of the college and directed the staff to leave the buildings, stating that they were being 'taken over.' Staff personnel and students left the buildings as directed and remained away. These armed persons remained in the library-administration building for approximately 28 hours after the buildings were taken over.

On April 29, 1969, Chief J. P. Strom of the South Carolina Law Enforcement Division, with approximately 100 policemen and 200 national guardsmen, surrounded the buildings occupied by the armed persons and speaking with the aid of a megaphone, read a proclamation from the Governor, declaring a state of emergency, and giving the group 30 minutes to vacate the building and submit to arrest. The armed students vacated the buildings as requested.

Mildred Bracey, Secretary to the President of Voorhees College, testified as to how the buildings were occupied by the armed students. She stated that she was at her desk in the office of the president and we quote her testimony as follows:

'Q. Tell us what occurred at that time?

'A. A young man came into the office.

'Q. What did he do?

'A. He pointed a gun at me.

'Q. And were you given any instructions or orders?

'A. Yes, I was told to get out of the building.

'Q. Did you immediately get out?

'A. No.

'Q. Then what happened?

'A. He cocked the gun and then I got out.'

Claude Green, Librarian at Voorhees College, testified that at about noon on April 28, 1969, he was in his office and saw a young man come in with a rifle or a gun. He said that he got up from his desk and went to tell the young man to leave but he 'told me that I had to leave my office and the building due to the fact that it was being taken over.' He further testified that the front of the library was completely glass and such was covered up with newspapers, pamphlets and posters.

There is testimony that due to the situation and the disorder existing at Voorhees College, that buses were made available for the students, who were not violating any law, to go to their respective homes. Many of the students took advantage of this arrangement and did go to their homes in various parts of the State and beyond.

There is testimony by one Thurston DeLaine, Director of Institutional Research and Planning at Voorhees College, that the Administrative Council of the college met on April 28, 1969, and he was directed to go to the occupied buildings for the purpose of ascertaining what had happened and to make an effort to set up a meeting with the students. He testified that he went to the...