State v. Jamgochian
| Decision Date | 27 July 1971 |
| Docket Number | No. 1093-E,1093-E |
| Citation | 109 R.I. 17,279 A.2d 923 |
| Parties | STATE v. Daniel JAMGOCHIAN. x. |
| Court | Rhode Island Supreme Court |
On June 19, 1969 a complaint and warrant were lodged against Daniel Jamgochian charging that he 'Did willfully stand on the sidewalk, to wit, Kennedy Plaza at the Bus Terminal, in the City of Providence, so as to obstruct a free passage for foot passengers, and did disturb and annoy passers' by and persons residing in the vicinity thereof, in violation of Chapter 30, Section(s) 10 & 11 of the Ordinances of the City of Providence of 1914 as amended.' After being adjudged guilty and fined in the police court of the city of Providence, Jamgochian appealed to the Superior Court where he was tried before a judge sitting without a jury, again found guilty, and sentenced to pay a fine of $5 and costs. He is now before us on a bill of exceptions wherein his single exception is to the trial justice's finding him guilty.
In support of his exception, defendant argues, principally and in substance, (1) that the evidence was not sufficient to justify a finding of guilty, and (2) that the complaint, and the ordinance upon which it was predicated, are so vague, general, uncertain and so lacking in specificity as to constitute a violation of his rights to due process under the fourteenth amendment of the Constitution of the United States and art. I, sec. 10 of our state constitution.
The facts are uncontroverted. Only one witness testified and he was the arresting officer. On June 18, 1969 at about 8:30 p.m. he and a fellow officer responded to a complaint that a group of youths were congregating in Kennedy Plaza near the bus terminal. On arrival at the scene they saw 20 to 25 persons, including defendant, standing and talking in groups of three or four. Some were on the eight-foot wide sidewalk, others were on the adjacent street. Those on the sidewalk so interfered with and so obstructed the free passage of pedestrians that a woman proceeding along the sidewalk was required to step into the street in order to get around them.
After becoming aware of the situation, the police officers advised the congregants that they were blocking the sidewalk, ordered them to disperse and warned that they would be charged with 'loitering and loafing' unless they dispersed. The officers then left the scene.
After a brief interval the officers returned. Of the 20 to 25 persons who formerly had been gathered there only defendant and one other remained. They were standing on the sidewalk and apparently conversing. Foot traffic in the vicinity was then heavy, but nobody 'was trying to pass (them) on the sidewalk,' and even though they were not completely obstructing free passage on the sidewalk, it would have been impossible for a pedestrian heading for a phone booth located nearby or for the bus terminal to reach his destination without walking around them. The officers advised defendant and his companion of their constitutional rights, reminded them of the earlier warning, and then took them into custody.
At the conclusion of the officer's testimony both the state and defendant rested. Following arguments of counsel the trial justice, in a bench decision, found the ordinance constitutional and that the complaint fairly charged an ascertainable offense, and then he pronounced defendant '* * * guilty of a violation of the ordinance Chapter 30, Section(s) 10 & 11 of the Ordinances of the City of Providence of 1914 as amended.'
The ordinance Jamgochian was charged with violating, in substance, makes it unlawful for any person to stand on any sidewalk so as to obstruct free passage for foot passengers; or for any person to hinder, delay, disturb or annoy passers-by; or for any person obstructing a sidewalk to refuse to move immediately when requested to do so by a police officer. The complaint, however, although framed in the language of the ordinance, ignores the legislative use of the disjunctive and charges defendant in the conjunctive, and in a single count, with obstructing a free passage for foot passengers and with disturbing and annoying passers-by and persons residing in the vicinity.
The change from the ordinance's disjunctive to the complaint's conjunctive poses no procedural difficulty for it is settled that 'When a statute makes it a crime to do this, or that, or that, mentioning several cognate matters disjunctively, the complaint or indictment may ordinarily charge them all conjunctively in a single count.' (Emphasis supplied.) State v. Wood, 14 R.I. 151 at 152. And when this is done-as it was here-and there is no pretrial motion that the complaint be amended to conform to the statute-and none was made in this case-proof of either of the offenses charged will support a conviction. See State v. Mazzarella, 103 R.I. 253, 255, 236 A.2d 446, 447-448.
So much for the procedural problem. We turn now to the Providence ordinance 1 in order to ascertain whether it is constitutional. A good starting point is Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. In that case, the Court, while at least implicitly indicating an awareness of the great weight which is customarily given to a person's right to be let alone, also recognized that it is a necessary incident of the responsibility of government to control travel on its sidewalks and streets, and that municipalities have the duty as well as the responsibility to regulate the use of their sidewalks and streets and to keep them open and available for movement in order '* * * to assure the safety and convenience of the people in their use and the concomitant right of the people of free speech and assembly.' Id. at 554, 85 S.Ct. at 464, 13 L.Ed.2d at 483.
In the exercise of those rights and in the fulfillment of these obligations, cities and towns may make it unlawful for a person to obstruct others in their lawful use of a sidewalk or street provided the regulatory legislation, on its face, is certain rather than vague, contains ascertainable standards, is not so broad as to condone punishment...
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Galloway v. State
...the holding in Coates in determining that statues prohibiting annoying conduct are impermissibly vague"); State v. Jamgochian, 109 R.I. 17, 24, 279 A.2d 923, 927 (1971) (holding unconstitutional, under Coates v. Cincinnati, that portion of an ordinance making it unlawful for a person to sta......
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State ex rel. City of Providence v. Auger
...an East Greenwich ordinance); State v. Berker, 114 R.I. 72, 328 A.2d 729 (1974) (reviewing a Warwick ordinance); and State v. Jamgochian, 109 R.I. 17, 279 A.2d 923 (1971) (reviewing a Providence ordinance). In those cases, we held that certain “public nuisance” ordinances were unconstitutio......
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State v. Berker
...has heretofore followed such rule on a number of occasions. State v. Pelliccia, 109 R.I. 106, 280 A.2d 330 (1971); State v. Jamgochian, 109 R.I. 17, 279 A.2d 923 (1971); State v. Raposa, 107 R.I. 712, 271 A.2d 306 (1970); State v. Mazzarella, 103 R.I. 253, 236 A.2d 446 (1967); State v. Prov......
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State v. Oliveira
...of any one of the proscribed acts will sustain a conviction, provided the charge is framed in the conjunctive. State v. Jamgochian, 109 R.I. 17, 21, 279 A.2d 923, 925-26 (1971). When only one of the offenses set forth in the statute is charged, however, proof of one of the others will not s......