State v. Allred, 735SC197

• Decision Date: 17 April 1974
• Docket Number: No. 735SC197,735SC197
• Citation: 21 N.C.App. 229,204 S.E.2d 214
• Parties: STATE of North Carolina v. Paul Gilbert ALLRED et al.
• Court: North Carolina Court of Appeals

Page 214

204 S.E.2d 214

21 N.C.App. 229

STATE of North Carolina v. Paul Gilbert ALLRED et al.

No. 735SC197.

Court of Appeals of North Carolina.

April 17, 1974 Certiorari Denied and Appeal Dismissed by Supreme Court June 4, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Henry T. Rosser, Raleigh, for the State.

Smith, Patterson, Follin & Curtis by Norman B. Smith, Greensboro, for defendants appellants.

PARKER, Judge.

Prior to arraignment for trial de novo in the Superior Court, defendants appeared through counsel before Judge Winifred T. Wells, presiding at the 17 July 1972 Criminal Session of Superior Court in New Hanover County, and moved to quash the warrant in each case on the grounds (1) the proclamation declaring the state of emergency referred to G.S. § 160--20.2, which provided for cooperation between law enforcement officers of different political subdivisions in event of a declared emergency, and made no reference to G.S. § 14--288.12(sic); (2) the proclamation was issued without any notice and hearing for defendants; and (3) there was no clear and present danger existing, either when the proclamation was issued or when defendants were arrested, which would justify interfering with their freedom of expression and assembly. The motions to quash were denied, which action is the subject of appellants' first assignment of error. There was no error in denial of the motions to quash.

'In this jurisdiction the rule is well established that a warrant may be quashed only for its failure to charge a crime or a lack of jurisdiction of the court to try the case--defects which appear on the face of the record. In ruling upon a motion to quash the judge rules only upon a question of law. He is not permitted to consider 'extraneous evidence,' that is, the testimony of witnesses of documents other than the specific statutes or ordinances involved.' State v. Underwood, 283 N.C. 154, 195 S.E.2d 489. In the present cases the warrants charged defendants with willful failure to comply with the proclamation issued by the Chairman of the Board of County Commissioners by using Hugh MacRae Park between the hours of 7:00 p.m. and 7:00 a.m. on 14 November 1971. Use of the park at that time was specifically prohibited by the proclamation. Issuance of the proclamation was authorized by the ordinance, which in turn was authorized by G.S. § 14--288.13, by which a portion of the State's police power was delegated to the governing bodies of the counties of this State. A similar delegation of police power to the governing bodies of municipalities, made by G.S. § 14--288.12, was held constitutional in State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449. That the proclamation made no reference to the statute in no way affected its validity; the existence of the statute, not reference to it in the proclamation, was all that mattered. Thus, the face of the warrants charged defendants with committing an act which by G.S. § 14--288.13(d) is made a misdemeanor. No defect appears on the face of the record, and defendants' motions to quash the warrants were properly denied by Judge Wells.

Upon trial of these cases before Judge Edward B. Clark and a jury, Judge Clark ruled as a matter of law that the proclamation was valid and constitutional, and accordingly instructed the jury that the only question before the jury was whether the defendants had violated the proclamation. In this we find no error. The limited delegation of the State's police power which our Legislature deemed wise to grant by G.S., Chap. 14, Art. 36A, to local governmental units in order to assist them in maintaining public peace and order during periods of emergency was, as above noted, held constitutional in State v. Dobbins, supra. That statute authorizes local governments to permit imposition of certain specified and limited prohibitions and restrictions during a 'state of emergency,' which is defined by G.S. § 14--288.1(10) as:

'The condition that exists whenever, during times of public crises, disaster, rioting, catastrophe, or similar public emergency, public safety authorities are unable to maintain public order or afford adequate protection for lives or property, or whenever the...