State v. Brooks , 24 N.C. App. 338 ( 1975 )

PARKER, Judge.

Prior to pleading upon trial de novo in Superior Court, defendant moved to quash the warrants as to all three charges on the grounds that the underlying statutes are unconstitutionally vague and overbroad and infringe upon fundamental First Amendment rights. By his first assignment of error defendant how seeks review of the denial of these motions. We find the statutes valid.

The statute involved in the cases in which defendant was charged with inciting and engaging in a riot, G.S. 14-288.2, was enacted as a part of Section 1 of Chap. 869 of the 1969 Session Laws, entitled “An Act to Revise and Clarify the Law Relating to Riots and Civil Disorders.” Long before enactment of that statute, participation in a riot had been recognized as a common-law crime in this State, State v. Moseley, 251 N.C. 285, 111 S.E. 2d 308 (1959) ; State v. Hoffman, 199 N.C. 328, 154 S.E. 314 (1930) ; State Stalcup, 23 N.C. 30 (1840), and the companion common-law crime of inciting a riot has been recognized as a distinct offense. State v. Cole, 249 N.C. 733, 107 S.E. 2d 732 (1959), cert. denied, 361 U.S. 867, 4 L.Ed. 2d 107, 80 S.Ct. 128 (1959). As stated in State v. Moseley, supra, at 288, 111 S.E. 2d at 311, the common-law offense of riot was “composed of three necessary and constituent elements: (1) unlawful assembly; (2) intent to mutually assist against lawful authority; and (3) acts of violence.” The common-law offense of inciting a riot was described in State v. Cole, supra, at 741, 107 S.E. 2d at 738, quoting from a Pennsylvania case, as follows:

“Inciting to riot from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot.”

In enacting the 1969 Act, the Legislature expressly declared that the provisions of the statute “are intended- to supersede and extend the coverage of the common-law crimes of riot and inciting to riot.” G.S. 14-288.3. Comparison of the provisions of G.S. 14-288.2 with the recognized elements of the common-law crimes which it supersedes discloses only a limited extension of the common-law offenses. Under G.S. 14-288.2 (d) “[a]ny person who wilfully incites or urges another to engage in a riot, so that as a result of such inciting or urgings a riot occurs or a clear and present danger of a riot is created, is guilty of a misdemeanor. ...” Under G.S. 14-288.2 (b) “[a]ny person who wilfully engages in a riot is guilty of a misdemeanor. ...” The statute, G.S. 14-288.2(a), defines a riot as follows:

“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.”

There is nothing constitutionally offensive in this definition. The words employed are not “so slippery and imprecise to the man of common understanding that he would have to guess at their meaning,” Fuller v. Scott, 328 F. Supp. 842, 850 (1971), and clearly the State transgreses upon no constitutionally protected activity when it makes it an offense to engage in a “riot” defined in terms of “violent” behavior and the “clear and present danger” of resultant harm. Nor does G.S. 14-288.2 (d) fail to pass constitutional scrutiny. The advocacy of imminent lawless action is not protected by the First Amendment, Brandenburg v. Ohio, 395 U.S. 444, 23 L.Ed. 2d 430, 89 S.Ct. 1827 (1969), and this is the only type of speech any reasonable construction of the statute would seem to cover. We find the statute under which defendant was prosecuted for inciting and engaging in a riot, G.S. 14-288.2, to be constitutionally valid. As to the charge of failing to comply with a lawful command to disperse, this Court has already ruled adversely to defendants present contentions. In State v. Orange, 22 N.C. App. 220, 206 S.E. 2d 377 (1974) and State v. Clark, 22 N.C. App. 81, 206 S.E. 2d 252 (1974), we upheld judgments imposed for violations of G.S. 14-288.5. In so doing, we considered and rejected the contention that the underlying statutes were unconstitutional. Defendant’s first assignment of error is overruled.

When the cases were called for trial in the District Court, defendant’s counsel filed a motion that the Court provide, at the expense of the State, a stenographic reporter to take down the proceedings at the trial in that Court and that he be furnished a transcript. In support of this motion, counsel offered to have defendant sign an affidavit to show his indigency. The District Court denied the motion, in so doing making findings that it is not customary to have a stenographic record in the District Court, that the District Court has no statutory authority to provide at the State’s expense a stenographic reporter in that Court, that while counsel offered to have the defendant make affidavit of indigency, no such affidavit had been theretofore filed, and the defendant appeared represented by privately employed counsel, that the motion was made after the case was called by the Solicitor for trial, that there is a scarcity of court reporters, and that to provide a reporter would delay the trial which was already scheduled for its third trial date. The Court did permit defendant to submit his affidavit of indigency for the record, but no finding as to indigency was made by the Court. At the call of the cases for trial de novo in the Superior Court and prior to pleading in that Court, the defendant, still represented by the same privately employed counsel, moved in the alternative for remand of the cases for a new trial in the District Court with a transcript to be provided to defendant, arrest of the District Court judgments, or for dismissal of the charges because of denial of his motion in the District Court to have a transcript of the trial in that Court made at the State’s expense. The denial of this motion in the Superior Court is the subject of defendant’s second assignment of error on this appeal.

Customarily, no court reporter is available and no transcript is made of criminal trial proceedings in our District Courts nor is such a transcript necessary to protect adequately the rights of a criminal defendant. This is so because when a defendant in a criminal case is convicted in the District Court, he has an absolute right to appeal to the Superior Court for trial de novo. G.S. 7A-290. In such event the trial in the Superior Court is in all respects de novo, and, “in contemplation of law it is as if the case had been brought there originally and there had been no previous trial.” State v. Sparrow, 276 N.C. 499, 507, 173 S.E. 2d 897, 902 (1970). Thus, a transcript of the criminal trial proceedings in the District Court, where the case is heard by the Judge without a jury, is of no substantial value to an effective appeal to the Superior Court, where the trial is completely de novo before Judge and a jury. It should be noted, also, that in this respect our practice treats the poor man in exactly the same manner as it treats the rich. Customarily no transcript of District Court criminal proceedings is available to either. Finally, we note that defendant in this case has alleged no special circumstances suggesting the need for a District Court transcript for a just determination of his cases, defendant, at all stages of the proceedings, simply asserting his abstract right thereto. We hold, therefore, that even if defendant had been adjudicated an indigent prior to his trial in the District Court, and even had his motion for a free transcript been timely made in that Court, there was no error in denying his motion. Defendant’s second assignment of error is overruled.

Defendant contends that certain weapons and containers found by the officers at the scene were improperly admitted into evidence over his objections. These articles, an iron pipe, a revolver, two shotguns, a machete, and two jugs containing an amber liquid not further identified, were found by the officers in a search of the area after the arrests were made. Although there was no evidence that defendant owned or had ever personally possessed any of these articles, the fact that such articles were present and possessed by some persons at the scene under the circumstances disclosed by the evidence was clearly relevant to show the existence of a “clear and present danger of injury or damage to persons or property.” There was no error in admitting these articles into evidence.

Defendant’s motions for nonsuit in all three cases were properly overruled. There was ample evidence that a riot as defined in G.S. 14-288.2 (a) occurred. When viewed in the light most favorable to the State, the evidence would support a jury finding that defendant both incited the riot before it occurred and thereafter participated in it. There was evidence that defendant claimed to be and was recognized by some in the crowd as- their leader. There was also evidence from which the jury could reasonably find that defendant, knowing that use of the school premises had been denied by the school authorities, anticipating the presence on the school grounds of “riot clad armed law enforcement officers,” and apparently willing to press his demands for use of the school property to the point of a violent confrontation with the authorities, urged his followers to assemble for that unlawful purpose; that after the crowd assembled at his urging, he continued to address them and to urge that they remain; that he did this knowing that threats voiced by members of the crowd toward the officers were growing increasingly violent in nature; and that defendant persisted in these endeavors until physical violence finally erupted. Upon such findings the jury could find that defendant willfully incited or urged others to engage in a riot and as a result of such inciting or urging a riot finally occurred.

There was also evidence that after the riot erupted, defendant remained at the scene and continued in the same activities which brought the riot into being. It is true, of course, that evidence of mere presence at the scene of a riot may not alone be sufficient to show participation in it. The evidence here shows much more than defendant’s mere presence after the riot occurred. As above noted, it shows that he claimed to be and was apparently recognized as the leader of those assembled at the scene. They cheered when he spoke and on occasion appeared to obey his commands. That at times he appeared to restrain them from advancing all the way upon the officers, was for the jury to evaluate. Certain it is that defendant can justly claim no credit for the fact that the affair ended without bloodshed. Credit for that must be given to the law enforcement officers, who acted with admirable coolness and restraint thoughout.

It is also manifest that there was ample evidence to support the jury’s finding that defendant was guilty of the charge of failing to comply with a lawful command to disperse. Defendant’s assignment of error directed to denial of his motions for nonsuit is overruled.

Defendant assigns error to denial of his motions for mistrial made on the grounds of what he asserts were various acts of prosecutorial misconduct on the part of the State’s attorney. We have carefully reviewed the record and, without expressing approval of the actions complained of, find that they were not such, either singly or cumulatively, as to result in denying defendant a fair trial. The trial court did not abuse its discretion in denying the motions for mistrial.

Finally, defendant assigns error to portions of the court’s instructions to the jury. We find it necessary to discuss only one of these. In connection with the case in which defendant was accused of failing to comply with a lawful order to disperse, the able trial judge inadvertently failed to note the 1971 amendment to G.S. 14-288.4 and in so doing charged concerning disorderly conduct in the language of G.S. 14-288.4(1) and (2) as those sections were originally enacted in 1969. As a result, the court’s charge failed to limit the definition of disorderly conduct to embrace only actions and words likely to bring on an immediate breach of the peace, as would be required by the 1971 amendment. See State v. Summrell, 282 N.C. 157, 192 S.E. 2d 569 (1972). For this error in the charge, defendant is entitled to a new trial in the case charging him with failing to comply with a lawful order to disperse. We have carefully considered defendant’s remaining assignments of error, and find no prejudicial error such as to warrant granting a new trial in the other two cases.

The result is:

In defendant’s trial and in the judgments imposed on the charges of inciting a riot (Warrant No. 3893, second count) and engaging in a riot (Warrant No. 4822, first count) we find

No error.

In the case in which defendant is charged with failing to comply with a lawful order to disperse (Warrant No. 4822, second count) defendant is entitled to a

New trial.

Judges Britt and Vaughn concur.