Summary
In Farmer v. State, 253 Miss. 289, 161 So.2d 159 (1964), a predecessor to the current statute was challenged on principles of vagueness and the possible imposition upon a multitude of fundamental rights.
Summary of this case from Smith v. City of PicayuneOpinion
No. 42983.
March 2, 1964.
1. Breach of the peace — disorderly conduct — conviction sustained.
Evidence sustained disorderly conduct conviction. Sec. 2087.5, Code 1942.
2. Breach of the peace — disorderly conduct — elements of charge — refusal to obey officer's order to "move on".
Elements of disorderly conduct charge were crowding or congregating with others, in place of business engaged in serving public, giving of order by police officer to disperse or move on, failure to obey order, and existence of circumstances such that breach of peace might be occasioned by refusal to obey order. Sec. 2087.5, Code 1942.
3. Constitutional law — disorderly conduct — conviction as not depriving defendant of his constitutional rights.
Conviction, under disorderly conduct statute, of one who refused to obey police officer's order to move on and out of bus depot did not deprive him of federal right to unsegregated travel, equal protection or due process of law, or right to freedom of speech, assembly and association. Amendment XIV, United States Constitution; Sec. 2087.5, Code 1942.
4. Constitutional law — due process — disorderly conduct statute — not a denial of.
Disorderly conduct statute on its face, and as it was applied to one who refused police order to move on and out of bus terminal, was not so vague as to amount to denial of due process of law under United States Constitution. Amendment XIV, United States Constitution; Sec. 2087.5, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, J.
Young Hall, R. Jess Brown, Jackson; Jack Greenberg, Leroy D. Clark, New York, N.Y., for appellant.
I. The evidence was insufficient as a matter of law to sustain a conviction of the offense charged, and the conviction denies due process of law under the Federal Constitution in that it rests on no evidence of the essential elements of the crime. Boynton v. Virginia, 364 U.S. 454; Edwards House v. Davis, 124 Miss. 485, 86 So. 849; Ricks v. State, 146 Miss. 659, 111 So. 752; Screws v. United States, 325 U.S. 91, 81 L.Ed. 1495; State v. Russell, 185 Miss. 13, 187 So. 540; Thompson v. Louisville, 362 U.S. 199; Yancy v. State, 202 Miss. 662, 32 So.2d 151; Secs. 702, 2087.5 (1, 2, 3, 4), Code 1942.
II. Conviction of appellant is invalid as a burden on interstate commerce in violation of Article I Section 8 Clause 3 of the United States Constitution, and denies appellant the federal right to unsegregated interstate travel guaranteed by the Interstate Commerce Act. Boynton v. Virginia, supra; Buchanan v. Warley, 245 U.S. 60; Chance v. Lambeth, 186 F.2d 879; Ex Parte Siebold, 100 U.S. 371; McCullough v. Maryland, 4 Wheat. (17 U.S.) 316, 4 L.Ed. 579; Morgan v. Virginia, 328 U.S. 373; South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177; Southern Pacific Co. v. Arizona, 325 U.S. 761; Strutwear Knitting Co. v. Olson (Minn.), 13 F. Supp. 384; Taylor v. Louisiana, 30 Law Week 3374; Whiteside v. Southern Bus Lines, 177 F.2d 949; Sec. 216(d), Interstate Commerce Act; 49 U.S.C. § 316(d).
III. The statute as applied deprives appellant of equal protection of the laws and due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Bailey v. Patterson, 7 L.Ed.2d 512; Davis v. Schnell (Ala.), 81 F. Supp. 872, affd. 336 U.S. 944; Guina v. United States, 238 U.S. 347; Lane v. Wilson, 307 U.S. 268; Louisiana State University and A. M. College v. Ludley, 358 U.S. 819; Yick Wo v. Hopkins, 118 U.S. 356; Sec. 4065.3, Code 1942.
IV. The statute as applied deprives appellant of the rights of freedom of speech, assembly and association guaranteed by the Fourteenth Amendment to the United States Constitution. Buchanan v. Warley, supra; Cantwell v. Connecticut, 310 U.S. 296; City of Tacoma v. Roc, 190 Wn. 44, 68 P.2d 1028; Cooper v. Aaron, 358 U.S. 1; Marsh v. Alabama, 326 U.S. 501; People v. Galpern, 259 N.Y. 279, 181 N.E. 572; Sellers v. Johnson, 163 F.2d 877; State v. Sugarman, 126 Minn. 477, 148 N.W. 466; Stromberg v. California, 283 U.S. 359; Terminiello v. Chicago, 337 U.S. 1; Thornhill v. Alabama, 310 U.S. 88; Tinsley v. City of Richmond, 202 Va. 707, 119 S.E.2d 488.
V. The statute on its face and as applied is so vague as to amount to a denial of due process of law under the Fourteenth Amendment to the United States Constitution. Connally v. General Construction Co., 269 U.S. 385; Hague v. Committee for Industrial Organization, 307 U.S. 496; Kunz v. New York, 340 U.S. 290; Mitchell v. United States, 313 U.S. 80; Saia v. New York, 334 U.S. 558; United States v. Clark Brewer, 139 U.S. 278; Winters v. New York, 333 U.S. 507.
VI. The convictions abridge appellant's privileges and immunities guaranteed by the Fourteenth Amendment to the Federal Constitution. Edwards v. California, 314 U.S. 160.
Joe T. Patterson, Attorney General, J.A. Travis, Jr., Robt. G. Nichols, Jr., Jackson, for appellee.
I. The evidence was sufficient as a matter of law to sustain a conviction of the offense charged. Bennett v. Dalton, 69 Ga. App. 438, 25 S.E.2d 726; Davis v. Burgess, 54 Mich. 514, 20 N.W. 540; Delk v. Com., 166 Ky. 39, 178 S.W. 1129; Halten v. State, 74 Neb. 757, 105 N.W. 298; People v. Anderson, 117 Cal. 763, 1 P.2d 64; People v. Benman, 154 Mich. 150, 117 N.W. 589; People v. Galpern, 259 N.Y. 279, 181 N.E. 572; People v. Friedman, 6 Misc.2d 271, 14 N.Y.S.2d 389; People v. Johnson, 86 Mich. 175, 48 N.W. 870; People v. Most, 171 N.Y. 423, 64 N.E. 175; St. Louis v. Slupsky, 254 Mo. 309, 162 S.W. 155; Shields v. State, 187 Wis. 448, 204 N.W. 486; State v. Christie, 97 Vt. 461, 123 A. 849; State v. Hebert, 121 Kan. 329, 246 P. 507; State v. Reichman, 164 Tenn. 653, 188 S.W. 225; State v. Stegar, 98 W. Va. 576, 119 S.E. 682; State v. Taylor, 38 N.J. Super. 6, 118 A.2d 36; Sec. 2037.5, Code 1942.
II. Conviction of appellant is not invalid as a burden on interstate commerce. Boynton v. Virginia, 364 U.S. 454; Chance v. Lambeth, 186 F.2d 879; Morgan v. Virginia, 328 U.S. 373.
III. The application of the statute does not deprive appellant of equal protection of the law or of due process. American Life Insurance Co. v. Walker, 208 Miss. 1, 43 So.2d 657; Brotherhood of R.R. Trainmen Insurance Dept. v. McLemore, 228 Miss. 579, 89 So.2d 629; Provenza v. Provenza, 201 Miss. 836, 29 So.2d 669; Superior Oil Co. v. Smith, 200 Miss. 782, 29 So.2d 114; State v. Cummings, 203 Miss. 583, 35 So.2d 636; Sec. 3374.77, Code 1942.
IV. The statute as applied does not deprive appellant of the rights of freedom of speech, assembly and association. Cantwell v. Connecticut, 126 Conn. 1, 8 A.2d 533, 310 U.S. 296, 60 S.Ct. 900; Cox v. New Hampshire, 312 U.S. 569, 85 L.Ed. 1049, 61 S.Ct. 762; Donnell v. State, 48 Miss. 661; Hart v. State, 87 Miss. 171, 39 So. 523; Hughes v. Superior Court, 339 U.S. 460, 94 L.Ed. 385, 70 S.Ct. 718; International Brotherhood, T.C.W.H. Union v. Honke, 339 U.S. 470, 94 L.Ed. 995, 70 S.Ct. 773; People v. Hussock, 6 Misc.2d 182, 23 N.Y.S.2d 520, cert. den. 312 U.S. 659, 85 L.Ed. 1107, 61 S.Ct. 733; State v. Sugarman, 126 Minn. 777, 148 N.W. 466; Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095, 47 S.Ct. 641.
V. The statute, as written and as applied, is not so vague as to amount to a denial of due process of law. Boyce Motor Lines v. United States, 342 U.S. 337; Chaplinsky v. New Hampshire, 315 U.S. 568; Jordan v. De George, 341 U.S. 223; Roth v. United States, 354 U.S. 476; United States v. Harriss, 347 U.S. 612; United States v. Ragen, 314 U.S. 513; Winters v. New York, 333 U.S. 507; Chap. 40 Sec. 722, New York Penal Law, Consolidated Laws.
VI. The conviction of appellant does not abridge his privileges or immunities guaranteed by the Federal Constitution. Edwards v. California, 314 U.S. 160.
James L. Farmer was charged by affidavit with violation of Sec. 2087.5, Miss. Code of 1942, which denounces disorderly conduct. A judgment of conviction in police court was appealed to county court where trial de novo was had and Farmer was again convicted. From that judgment he appealed to circuit court where the case was considered on the record made in county court and the judgment was affirmed. Farmer then appealed to this Court.
On May 24, 1961, Jackson, Mississippi, was in a state of crisis. The police had information that appellant and others were coming to Jackson on a Continental Trailways bus to create an incident or trouble. The bus from Montgomery, Alabama, was scheduled to arrive at 4:45 P.M. The excitement and anticipated difficulties attending appellant's arrival in Jackson are indicated by the fact that the Jackson Police Department had taken elaborate precautions. Seventy-five policemen were dispatched to the immediate area of the Continental Trailways Bus Terminal. Officers were stationed on all streets in the vicinity of the bus terminal, on parking lots, on the loading ramps at the terminal, and inside the waiting rooms. People were not allowed to congregate in the area and no one was allowed to enter the immediate area of the terminal except those having business there and newspapermen. The people generally were required by the police to keep moving or otherwise do as the police directed. When the bus arrived from Montgomery, a group of armed National Guardsmen got off first, then appellant and his companions got off and entered the waiting room wherein were twenty or more newspapermen and twenty-five or more other people.
As a matter of interest, see Thomas v. State, No. 42,987, decided by this Court February 17, 1964. It is there reflected that appellant was a fellow traveler with Thomas, defendant in that case, and appellant and Thomas were arrested at the same time.
While no one actually attempted an assault on appellant with any kind of weapon, the people in the terminal were in an angry, ugly and violent mood and began converging on appellant. Captain J.L. Ray, who was in charge of the police inside the terminal, and who was sent on this mission to preserve the peace, ordered appellant to move on and out of the terminal. Appellant ignored the order and Captain Ray gave the order again. He then asked appellant if he was going to obey the order. Upon appellant ignoring Captain Ray's order and question, he was arrested. There is no evidence that appellant had any further business in the waiting room. The undisputed testimony of an experienced police officer and a newspaperman was that the circumstances were such that a breach of the peace was likely as a result of the presence of the appellant and those congregated with him. All the facts and circumstances surrounding appellant's arrest were shown by the testimony of Captain Ray and a newspaper reporter.
(Hns. 1, 2) The first question raised by appellant's brief is whether the proof was sufficient to sustain the conviction. We hold it was. The constitutent elements of the offense charged are (1) a crowding or congregating with others, (2) in a place of business engaged in serving the public, (3) the giving of an order to disperse or move on by a proper officer, (4) failure to obey the order, and (5) the existence of circumstances such that a breach of the peace might be occasioned by refusal to obey the order. Thomas v. State, No. 42,987, decided February 17, 1964, 252 Miss. 527, 160 So.2d 657.
The first four stated elements were shown without question. The fifth element was also proven by sufficient evidence. The witnesses were of the opinion that the circumstances were such that a breach of the peace would probably have occurred. The circumstances attending the giving of the order to move on were shown, and the jury had ample evidence from which to draw an inference that a breach of the peace was imminent unless appellant and his party moved on to wherever they wished to go. It is significant that appellant does not claim he had any further business at the bus station. We hold that the evidence was sufficient to sustain the jury verdict of guilty. Thomas v. State, supra, and authorities there cited. The facts in the present case are substantially the same as in Thomas, except in Thomas there was evidence of the riots and violence which attended the travels of the "freedom riders" across Alabama on their way to Mississippi, and some additional testimony was offered of the excitement attending the arrival of the "freedom riders" in Jackson. Appellant concedes in his brief that the facts in the "freedom rider" cases (including Thomas) "show a generally identical fact pattern."
(Hns. 3, 4) Appellant also contends that his conviction is invalid because (1) it denies him the Federal right to unsegregated interstate travel guaranteed by the interstate commerce act, and (2) the statute as applied deprives appellant of equal protection of law and due process of law guaranteed by the Fourteenth Amendment to the United States Constitution, and (3) the statute as applied deprives appellant of the right of freedom of speech, assembly, and association guaranteed by the Fourteenth Amendment to the United States Constitution, and (4) the statute on its face and as applied is so vague as to amount to a denial of the due process of law under the Fourteenth Amendment to the United States Constitution.
These exact questions were raised in Thomas and were duly considered and rejected by the Court in that case. It would be useless to again discuss those questions.
The appellant did not testify. He offered no testimony that he was denied the right of free speech, protest, or assembly for any lawful purpose, or to do any act relating to travel. Appellant claims immunity from the laws of this State making it a misdemeanor to disobey an officer when the officer is making a reasonable effort to prevent a breach of the peace, but offered no proof whatever that he was in fact seeking to exercise any such guaranteed right. The proof showed that Captain Ray acted in good faith in an effort to keep the peace under exceedingly difficult circumstances. It cannot be contended that Captain Ray acted arbitrarily or capriciously. The right of the police to manage people in situations such as that revealed by this record must be upheld.
Affirmed.
All Justices concur.