State v. Douglas

• Decision Date: 07 May 1973
• Docket Number: No. 52865,52865
• Citation: 278 So.2d 485
• Parties: STATE of Louisiana v. Emmitt J. DOUGLAS.
• Court: Louisiana Supreme Court

Page 485

278 So.2d 485

STATE of Louisiana v. Emmitt J. DOUGLAS.

No. 52865.

Supreme Court of Louisiana.

May 7, 1973.

Murphy W. Bell, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Baton Rouge, for plaintiff-appellee.

BARHAM, Justice.

The defendant Emmitt J. Douglas was convicted after a trial by jury of inciting a riot, a violation of R.S. 14:

329.2, and was sentenced on June 11, 1971, to pay a fine of $350.00 (or serve a 30-day sentence in default thereof) and to serve a sentence of three months in the East Baton Rouge Parish jail. The three-month jail sentence was suspended on good behavior for one year. The basis of the prosecution was a speech made by the defendant at a rally.

At the outset it is necessary for us to meet defendant's argument that the statute under which he was prosecuted is unconstitutional. The applicable sections of Title 14 of our Revised Statutes are as follows:

' § 329.1 Riot

'A. A riot is a public disturbance involving an assemblage of three or more persons acting together or in concert which by tumultuous and violent conduct, or the imminent threat of tumultuous 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.'

' § 329.2 Inciting to riot.

'Inciting to riot is the endeavor by any person to incite or procure any other person to create or participate in a riot.'

While permissible infringements upon First Amendment privileges are very limited, that provision of the United States Constitution does not deprive the states of the power and authority to regulate Conduct which is 'more than 'speech', more than 'press', more than 'assembly', and more than 'petition'. * * * Narrowly drawn statutes regulating the conduct of demonstrators and picketers are not impossible to draft.' Justice Black concurring in Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). Justice Black continued: '* * * But to say that the First Amendment grants those broad rights free from any exercise of governmental power to regulate Conduct, as distinguished from speech, press, assembly, or petition, would subject all the people of the Nation to the uncontrollable whim and arrogance of speakers, and writers, and protesters, and grievance bearers.' (Emphasis here and elsewhere supplied.) See also Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

If the statute before us did not on its face readily lend itself to a construction and interpretation which would not infringe upon First Amendment rights, we would be compelled to declare it unconstitutional. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Dombrowski v. Pfister, 38 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). However, the statute appears on its face to regulate conduct whch is not within the ambit of the First Amendment protection. A riot is 'tumultuous and violent Conduct, or the imminent threat of tumultuous and violent Conduct', which results in injury or damage or creates a clear and present danger of injury or damage. Inciting to riot, with which this defendant was charged, is 'the Endeavor by any person to incite or procure any other person to Create or Participate in a riot'. Clearly these provisions (along with the penal provision, R.S. 14:329.7) make punishable both the conduct of one who engages in violence in combination with others and the conduct of one who intentionally and willfully endeavors to incite or procure any other person to create or participate in violenc with others--i.e., to endeavor to incite a 'riot' as defined by R.S. 14:329.1.

Since no one would seriously contend that actual participation in a riot is protected by the First Amendment, it would seem that actions or endeavors or conduct to procure or incite others to riot is no less outside the protection of the First Amendment. For speech to constitute this conduct of inciting to riot, it must be a willful, intentional 'endeavor' to gain as an immediate result, and specifically from that speech, the participation of three or more persons in combination to do violence. Under this construction of the statute ¹ we proceed to discuss the merits of defendant's Bill of Exceptions No. 5, pretermitting consideration of the other bills urged.

On July 31, 1969, the defendant, then the NAACP state president, participated in a protest march and rally sponsored by the Baton Rouge branch of the NAACP. Dr. D'Orsay Bryant, president of the sponsoring body, was in charge of the affair. The purpose of the march and rally was to demonstrate the black community's concern over allegedly brutal police conduct which resulted in the shooting deaths of two black youths within a few weeks before the date of the rally.

At the rally, which took place on the steps of the city hall, the defendant delivered the speech which formed the basis of his prosecution for inciting to riot. ² Within an hour after the disbanding of the marchers a rash of seemingly unprovoked assaults and batteries began to occur in various parts of the city. Later that evening there there were a number of fires at various locations throughout the city, some of which resulted from the hurling of firebombs and some of which were of unknown origin. The prosecution contended at the trial that all of these incidents resulted from the defendant's speech to the rally crowd.

The defendant was the last of three speakers to address the assemblage and spoke immediately after a black youth named Jerry Johnson, who had not been scheduled on the program but spoke at the request of D'Orsay Bryant. Johnson's speech contained numerous inflammatory remarks. The prosecutor in his opening remarks at the trial presented to the jury his theory that the defendant had 'adopted' the volatile speech made by Johnson, and quoted to the jury inflammatory remarks made by Johnson during the course of his speech. The prosecutor then quoted a few selected phrases from Douglas' speech in which the defendant stated that the black community was no longer going to turn the other cheek but was now going to take an eye for an eye and in which he stated to the crowd, at the conclusion of his speech, 'Do your thing'.

After a four-day trial, during which the prosecution presented vidence of numerous incidents of violence which occurred on July 31, 1969, after the rally, and introduced into evidence the speeches of the defendant and Jerry Johnson, the jury returned a responsive verdict of guilty of inciting a riot. ³ At the close of the State's evidence, and before the defense presented its witnesses, the defense orally moved for a directed verdict, alleging that the State had failed to prove essential elements of the crime of inciting to riot as charged, to-wit: damages in excess of $5000.00 (see R.S. 14:329.7(B)), and the element of willfulness. The trial court denied the motion, stating that it did not have the authority to grant a directed verdict in light of recent decisions of this court. The defense reserved Bill of Exceptions No. 5 to the court's ruling.

There can be no doubt that the decisions upon which the trial court relied in its denial of the defendant's motion for a directed verdict were State v. Hudson, 253 La. 992, 221 So.2d 484 (1969), and its progeny. ⁴ In Hudson, as in this case, the defendant Hudson moved for a directed verdict, alleging that there was 'no evidence'. However, the trial judge found specifically that the State had made out a prima facie case. It has long been the opinion of some members of this court that the declaration in Hudson of the unconstitutionality of Code of Criminal Procedure Article 778 (providing for directed verdicts) was mere dictum. In dissent in Hudson, Justice Barham pointed out that the bill of exceptions taken to the trial court's refusal to direct a verdict posed a question of the jurisdiction of the trial court, not of the Supreme Court, and that the Supreme Court therefore could not note the unconstitutionality of the statute ex proprio motu. Justices Hamiter and Sanders, though they concurred in the denial of a rehearing in Hudson, were of the opinion that consideration of the constitutional question concerning the directed verdict statute was 'unnecessary and improper'. In his concurring opinion in State v. Williams, 258 La. 801, 248 So.2d 295 (1971), in which Justices Barham and Dixon concurred, Justice Tate agreed that the issue had not been properly before the court in Hudson.

It would therefore be unnecessary to overrule Hudson, considering that the determination of unconstitutionality is merely dictum. Four members of the present court have expressed the view that the issue of constitutionality was not properly before the court when it decided Hudson. Nevertheless, we now consider the basis for that declaration of unconstitutionality in Hudson, which was that statute's conflict with Article XIX, Section 9, of the Louisiana Constitution of 1921. Section 9 provides: '* * * The jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.' The Hudson majority determined that because Article 778 allowed the trial judge to direct a verdict of acquittal if the evidence was insufficient to sustain a conviction, it clashed with the constitutional mandate that the jury decides the question of guilt or innocence. However, Article XIX, Section 9, of our Constitution requires that the jury be the judge of the Law and the facts on the question of guilt or innocense After having been charged as to the applicable law by the presiding judge. See Justice Tate's concurring opinion in State v. Williams, supra. Until the judge charges the jury as to the applicable law in the case, the judge, not the jury, is...