State v. Ayers

• Decision Date: 17 November 1969
• Parties: STATE of Delaware, Plaintiff, v. Harold AYERS et al., Defendants.
• Court: United States State Supreme Court of Delaware

Page 162

260 A.2d 162

STATE of Delaware, Plaintiff, v. Harold AYERS et al., Defendants.

Supreme Court of Delaware.

Nov. 17, 1969.

Certification of Questions of Law Pursuant to Supreme Court Rule 20 from the Superior Court.

Jerome O. Herlihy, Special Deputy Atty. Gen., and Fletcher E. Campbell, Jr., Deputy Atty. Gen., Wilmington, for the State.

Stephen B. Potter, of Sullivan & Potter, Rodney M. Layton, R. H. Richards, III, Martin I. Lubaroff, Richard F. Balotti, of Richards, Layton & Finger, Carl Schnee, Wilmington, for defendants.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This case comes to us upon Certification under Rule 20 in eighteen pending criminal prosecutions under the Riot Act (11 Del.C., § 363), the full text of which is as follows:

' § 363. Riot, prima facie evidence; liability for conduct of another

'(a) A person is guilty of riot when he participates with 2 or more persons in a course of disorderly conduct:

'(1) with intent to commit or facilitate the commission of a felony or misdemeanor; or

'(2) with intent to prevent or coerce official action; or

'(3) when the accused or any other participant to the knowledge of the accused uses or plans to use a firearm or other deadly weapon.

'(b) In any prosecution for riot it is prima facie evidence of participation in the riot that the accused was present at the scene of the riot, not assisting to suppress it.

'(c) Whoever violates the provisions of this section shall be guilty of a felony and shall be imprisoned for not less than 3 years nor more than 10 years and shall not be eligible for probation or parole during the first 3 years of his sentence.

'(d) Any person over 16 years old who violates the provisions of this section shall be prosecuted as an adult.

'(e) A person is guilty of an offense under this section, committed by another person, when:

'(1) acting with the state of mind that is sufficient for commission of the offense, he causes an innocent or irresponsible person to engage in conduct constituting the offense; or

'(2) intending to promote or facilitate the commission of the offense he:

'(i) solicits, requests, commands, importunes, or otherwise attempts to cause the other person to commit it; or

'(ii) aids, counsels, or agrees or attempts to aid the other person in planning or committing it; or

'(iii) having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so; or

'(3) his conduct is expressly declared by a statute of this State to establish his complicity.

'(f) In any prosecution for an offense under this section in which the criminal liability of the accused is based upon the conduct of another person pursuant to this section, it is no defense that:

'(1) the other person is not guilty of the offense in question because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the conduct in question or of the accused's criminal purpose, or because of other factors precluding the mental state required for the commission of the offense; or

'(2) the other person has not been prosecuted for, or convicted of, any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense or in a different degree, or has legal immunity from prosecution for the conduct in question.

'(g) Disorderly conduct as used in this section means a course of conduct by a person who:

'(1) causes public inconvenience, annoyance, or alarm, or recklessly creates a risk thereof, by

'(i) engaging in fighting or in violent, tumultuous, or threatening behavior; or

'(ii) making an unreasonable noise or an offensive coarse utterance, gesture, or display, or addressing abusive language to any person present; or

'(iii) dispersing any lawful procession or meeting of persons, not being a peace officer of this state and without lawful authority; or

'(iv) creating a hazardous or physically offensive condition which serves no legitimate purpose; or

'(2) engages with at least one other person in a course of disorderly conduct as defined in paragraph (1) of this subsection which is likely to cause substantial harm or serious inconvenience, annoyance, or alarm, and refuses or knowingly fails to obey an order to disperse made by a peace officer to the participants.'

The following questions have been certified:

'1. Is 11 Del.C. § 363 unconstitutional and void, in that it violates the due process clause of the Fifth and Fourteenth Amendments of the Constitution of the United States and the due process clause of Article 1, §§ 7 and 9 of the Constitution of the State of Delaware, by reason of the fact that:

'a. It is so vague and indefinite as not to apprise a citizen of the conduct which the statute purports to prohibit?

'b. It is so vague and indefinite as not to fully inform the defendant of the nature and cause of the accusation against him?

'2. Is 11 Del.C. § 363 unconstitutional and void, in that it unduly restricts the right of assembly guaranteed by the First and Fourteenth Amendments of the United States Constitution, and Article 1, § 16 of the Constitution of the State of Delaware, by reason of the fact that:

'a. 11 Del.C. § 363(a)(1) requires a showing that the defendant intended to commit or facilitate the commission of a crime, and a crime these defendants are charged with is the causing of the gathering of a crowd of 10 or more persons in violation of City Ordinance 67--061, Section 1, of the City of Willington, Delaware. Is this Ordinance constitutional?

'b. 11 Del.C. § 363(b) makes a participant guilty of a crime if he is present in a riotous assembly and does nothing to assist in suppressing it.

'3. Is 11 Del.C. § 363 unconstitutional and void in that it unduly restricts the right of free speech as guaranteed by the First Amendment of the United States Constitution?

'4. Is 11 Del.C. § 363(c) unconstitutional and void in that the penalties set forth are so cruel and unusual to be a violation of the Eighth Amendment of the Constitution of the United States, and Article 1, § 11 of the Constitution of the State of Delaware, for the reason that it provides a mandatory sentence of three years which may be disproportionate to the crime committed and denies the right to probation and parole during the portion thereof?

'5. Is 11 Del.C. § 363(b) unconstitutional and void, in that it violates the Fourteenth Amendment and the State's police power clause of the Constitution of the United States and the due process clause of Article 1, §§ 7 and 9 of the Constitution of the State of Delaware, by reason of the fact that it predicates guilt on a presumption that does not reasonably follow from the fact to be proven?

'6. Is 11 Del.C. § 363(b) a violation of a citizen's constitutional rights under the First, Fifth and Fourteenth Amendments to the Constitution of the United States, and Article 1, § 7 of the Constitution of the State of Delaware, in that it compels a citizen to be a witness against himself by forcing him to testify to overcome a presumption of participation?

'7. Is 11 Del.C. § 363(d) a violation of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States in that it classifies juvenile offenders as adults without any reasonable basis for such classification?'

All of the incidents upon which the indictments against these defendants were founded took place in April, 1968, during the course of rioting, burning, sniping and looting in the City of Wilmington. Beyond this generalization, however, we have no precise factual situation relating to any of the defendants. The questions presented to us, therefore, are to be answered from the face of the statute, alone. The attack upon it is that, as a matter of law, unrelated to any factual situation, it is unconstitutional.

Question No. 1

This question raises the issue of whether 11 Del.C., § 363 is violative of due process of law for vagueness in that it forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning, and differ as to its application.

In Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182, the Supreme Court of the United States reaffirmed its prior ruling in Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, to the effect that a statute to be void for vagueness must forbid or require 'the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application'. In Cameron, a statute prohibiting picketing 'in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from' any court house was held constitutional against an attack that it was overly vague. The statute was characterized by the court as a 'precise and narrowly drawn regulating statute evincing a legislative judgment that certain specific conduct be * * * proscribed.'

This rule was recognized as the test of criminal statutes attacked on the ground of vagueness by the Superior Court of this State in State v. Chase, 11 Terry 383, 131 A.2d 178. We make the same recognition.

It is not necessary that a statute must with absolute specificity spell out the details of all offenses which are embraced by its terms in order to exclude those offenses which are not proscribed by the statute. The Constitution does not require the impossible of the drafters seeking to proscribe a course of conduct impossible of definition with mathematical preciseness. There may be circumstances which make it difficult to determine whether particular conduct of a particular defendant falls within the statutory proscription, but that is not a sufficient reason to hold the statute void for vagueness. The subject matter of the statute and the object sought to be reached may give content to words which, standing alone, seem obscure and vague. When a...