State v. Brooks

• Decision Date: 06 June 1975
• Docket Number: No. 76,76
• Citation: 287 N.C. 392,215 S.E.2d 111
• Parties: STATE of North Carolina v. Howard BROOKS.
• Court: North Carolina Supreme Court

Page 111

215 S.E.2d 111

287 N.C. 392

STATE of North Carolina v. Howard BROOKS.

No. 76.

Supreme Court of North Carolina.

June 6, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas L. Ringer, Jr., Raleigh, for the State.

Paul, Keenan, Rowan & Galloway by James V. Rowan, Durham, for defendant-appellant.

COPELAND, Justice.

Defendant brings forward four questions based on five of the fourteen assignments of error properly noted in the record.

In Question #1 (Assignments #1 and #3) defendant contends that the trial court erred in failing to quash the warrants charging him with inciting a riot and engaging in a riot on the grounds that the statutes underlying these charges are unconstitutional on their face and as applied.

We begin our evaluation of defendant's argument by examining the common law offense of riot. In State v. Cole, 249 N.C. 733, 107 S.E.2d 732, cert. denied, 361 U.S. 867, 80 S.Ct. 128, 4 L.Ed.2d 107 (1959), this Court, in an opinion by Justice Denny (later Chief Justice), defined this common law offense as follows:

'(A) tumultuous disturbance of the peace by three persons or more assembled together of their own authority, with intent mutually to assist one another against all who shall oppose them, and afterwards putting the design into execution, in terrific and violent manner, whether the object in question be lawful or otherwise. Indictment for riot always must charge the defendants with unlawful assembly, mutual intent to assist one another, and execution of the intent by overt acts, before they can be convicted.' Id. at 744, 107 S.E.2d at 741. See also State v. Hoffman, 199 N.C. 328, 154 S.E. 314 (1930); State v. Stalcup, 23 N.C. 30 (1840).

The common law crime of unlawful assembly, which is a component element of common law riot, contains the following elements: (1) the participation of three or more persons; (2) a common intent to attain a purpose which will interfere with the rights of others by committing disorderly acts; and (3) a purpose to commit acts in such manner as would cause firm persons to apprehend a breach of peace. See Proposed Legislation Relating to Riots and Civil Disorders, Report and Commentary of the North Carolina Governor's Committee on Law and Orders, 6 (1969) (hereinafter cited as N.C. Riot Report).

Following certain civil disorders that occurred in this State during April of 1968 former Governor Dan K. Moore (now an Associate Justice of this Court) requested the Governor's Committee on Law and Order (hereinafter referred to as Advisory Committee) to consider appropriate legislation for dealing with riots and other disturbances. See N.C. Riot Report, supra, at vi.

The legislation eventually proposed by the Advisory Committee was subsequently enacted by the North Carolina General Assembly as Section 1, Chapter 869, 1969 Session Laws, entitled 'An Act to Revise and Clarify the Law Relating to Riots and Civil Disorders.' This Act was codified as Article 36A of Chapter 14 of the General Statutes. G.S. § 14--288.2, the provision applicable in the instant cases wherein defendant was charged with inciting and engaging in a riot, was enacted as a part of Chapter 869 1969 Session Laws. G.S. § 14--288.2 provides as follows:

'(a) A riot is a public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.

'(b) Any person who wilfully engages in a riot is guilty of a misdemeanor punishable as provided in § 14--3(a).

'(c) Any person who wilfully engages in a riot is guilty of a felony punishable by a fine not to exceed ten thousand dollars ($10,000.00) or imprisonment for not more than five years, or both such fine and imprisonment, if:

(1) In the course and as a result of the riot there is property damage in excess of fifteen hundred dollars ($1,500.00) or serious bodily injury; or

(2) Such participant in the riot has in his possession any dangerous weapon or substance.

'(d) Any person who wilfully incites or urges another to engage in a riot, so that as a result of such inciting or urging a riot occurs or a clear and present danger of a riot is created, is guilty of a misdemeanor punishable as provided in § 14--3(a).

'(e) Any person who wilfully incites or urges another to engage in a riot, and such inciting or urging is a contributing cause of a riot in which there is property damage in excess of fifteen hundred dollars ($1,500.00) or serious bodily injury, is guilty of a felony punishable as provided in § 14--2.'

G.S. § 14--288.2(a) lists the component elements that constitute the crime of riot. These elements are as follows: (1) Public disturbance; (2) Assemblage; (3) Three or more persons; (4) Disorderly and violent conduct, or the imminent threat of such conduct; and (5) Results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property. The definitional section of Article 36A, G.S. § 14--288.1, in sub-section (8), defines a 'public disturbance' as follows:

'Any annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access. The places covered by this definition shall include, but not be limited to, highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.'

'Disorderly conduct,' as it applies to our fact situation, is defined by G.S. § 14--288.4(a) as follows:

'Disorderly conduct is a public disturbance intentionally caused by any person who:

'(1) Engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence; or

'(2) Makes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace; . . .'

Defendant contends that '(T)he very fact that correct application of § 14--288.2 requires a cross-reference through this interlocking maze of statutory descriptions makes § 14-288.2 so complex and imprecise as to be unconstitutional.' We fail to discern the statutory complexity alleged to exist by defendant. One purpose for codifying this offense was to simplify the common law by setting out in concrete form the essential elements that constitute this crime. See N.C. Riot Report, supra, at 6--7. This purpose has been accomplished. The key words of the statutory definition of riot are 'three persons,' 'violent conduct,' and 'clear and present danger of injury or damage.' See Fuller v. Scott, 328 F.Supp. 842 (M.D.N.C.1971). We believe that our citizens who desire to obey this statute will have no difficulty in understanding it. These are not words so vague and imprecise that men of common intelligence and understanding must guess at their meanings. See Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). 'The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.' Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). See also Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

Furthermore, we do not find the reach of G.S. § 14--288.2 to be so pervasive as to include activity protected by the First Amendment. A public disturbance involving three or more people, no matter how noisy or boisterous, cannot, under the statutory definition, be a riot unless violence or the threat of immediate violence which poses a clear and present danger to persons or property is present. The advocacy of imminent lawless action is not protected by the First Amendment. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam). The latter is the only type of speech that can come within the purview of G.S. § 14--288.2.

The right of freedom of speech is not an absolute one, and the State in the exercise of its police power may punish the abuse of this freedom. See, e.g., Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). The State has a paramount duty to maintain order not only in the streets but in schools, hospitals, and other public places. The United States Supreme Court has recognized this obligation. See, e.g., Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Colten v. Kentucky, Supra; Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Accordingly, we find nothing constitutionally impermissible in our statutory definition of the offense of riot. Defendant's assignments relating to the constitutionality of G.S. § 14--288.2 are therefore overruled.

Defendant's motion to quash the warrants charging him with inciting a riot and with engaging in a riot also raised the question of the sufficiency of the warrants to charge the commission of criminal offenses. See, e.g., State v. Vestal, 281 N.C. 517, 520, 189 S.E.2d 152, 155 (1972), and numerous cases there cited. It is essential to the jurisdiction of the court that a criminal offense be charged in the warrant upon which the State brings the defendant to trial. See, e.g., State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967); State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965).

Defendant was charged in the second count of...