STATE of North Carolina
v.
Rev. J. E. ORANGE.
No. 741SC404.
Court of Appeals of North Carolina.
July 3, 1974. Appeal Dismissed September 12, 1974.*378 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.
Paul, Keenan & Rowan by Jerry Paul, Durham, for defendant appellant.
Appeal Dismissed by Supreme Court September 12, 1974.
PARKER, Judge.
Defendant assigns error to the trial court's failure to grant his pretrial motion to quash the warrant. First, defendant argues that the affidavit in support of a warrant failed to indicate to the magistrate how the affiant became aware of the fact of defendant's alleged criminal activity. This contention is feckless. The affidavit states that Chowan County Sheriff Troy Toppin, the affiant himself, gave the order to disperse, and it is clear that he personally witnessed defendant's subsequent refusal to comply.
Next, defendant contends that the warrant charges him with violation of an unconstitutional statute. This contention is also without merit. Defendant was charged with failing to disperse after having been commanded to do so by a law enforcement officer responsible for keeping the peace who had reasonable grounds to *379 believe that disorderly conduct by an assemblage of three or more persons was occurring, a violation of G.S. § 14-288.5. "Disorderly conduct" is in turn defined by the five subparagraphs of G.S. § 14-288.4(a). G.S. § 14-288.4(a)(3), (4) and (5) deal with behavior at public or private educational institutions and are hence irrelevant to the present inquiry. The remainder and relevant portions of G.S. § 14-288.4(a) as amended in 1971, provide as follows:
"§ 14-288.4. Disorderly conduct.(a) 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 offers no attack on G.S. § 14-288.4(a)(1), the constitutionality of which would appear manifest. Defendant does contend that G.S. § 14-288.4(a) (2) is unconstitutionally vague under the First Amendment. In State v. Summrell, 282 N.C. 157, 192 S.E.2d 569, however, our Supreme Court dealt with this very objection. In Summrell, the trial judge, dealing with G.S. § 14-288.4(a) (2) as written prior to its revision in 1971 Session Laws, Chap. 668, Sec. 1, construed G.S. § 14-288.4(a)(2) to prohibit only words and conduct likely to provoke ordinary men to violence. In approving the trial judge's construction, our Supreme Court said (282 N.C. at p. 168, 192 S.E.2d at p. 576):
"There can be no doubt that the General Assembly intended to prohibit `fighting words,' words tending to cause an immediate breach of the peace wilfully spoken in a public place, and that [the trial judge's] interpretation accurately expressed the legislative purpose. At this point we note that the General Assembly by N.C.Sess.Laws, Ch. 668, § 1 (1971) . . . rewrote Section (a)(2) so that it now reads `[m]akes 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. . . .' There is no substantial difference between the 1971 revision and the 1969 version of Section (a)(2) as [the trial judge] construed it."
Defendant's additional argument that this language from Summrell is no longer constitutional under Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408, is wide of the mark; Gooding was decided before and discussed in Summrell.
Defendant next contends that the superior court erred in denying his motion to be declared indigent and be provided with a free transcript of the district court proceedings. The superior court denied defendant's motion on grounds that "the defendant is guilty of laches and has failed to move in apt time." We agree with the trial court. Judgment in the district court imposing suspended sentence was entered on 31 July 1973. Defendant then appealed to the superior court for trial de novo, and on 22 August 1973 defendant's attorney telephoned and later that day met with the district attorney and the superior court judge assigned to hold court in Chowan County in September. At this meeting, defendant's counsel failed to request either indigency status or a free transcript for his client, and did not do so until, after one continuance, defendant's case came on for trial on 11 September 1973. Defendant failed to make a timely request for a free transcript and cannot now complain of the trial court's denial of his belated motion. See State v. Clark, N.C.App., 206 S.E.2d 252 (filed June 19, 1974).
Defendant assigns error to the admission, over objection, of several portions of the testimony of Sheriff Toppin and *380 Police Captain C. A. Williams, describing the crowd as "trying" to push its way into the courthouse and the police officers as "trying" to keep members of the crowd, including the defendant, out of the courthouse. It is clear that the witnesses used the word "trying" in a purely descriptive sense, describing physical actions rather than the witnesses' opinion as to motivation.
Defendant assigns error to the trial court's denial of his motion for nonsuit at the close of all the evidence. In our opinion, the evidence, when taken in the light most favorable to the State, was sufficient to require submission of the case to the jury as to defendant's guilt or innocence of the offense with which he was charged. As pointed out in the opinion by Chief Judge Brock in State v. Clark, supra, "[u]nder G.S. § 14-288.5, the failure to disperse when commanded by an officer would be an offense where no disorderly conduct was occurring so long as it is shown on trial that the officer had reasonable grounds to believe that disorderly conduct was occurring by an assemblage of three or more persons." Here, the evidence was amply sufficient to support a jury finding that Sheriff Toppin, a law enforcement officer responsible for keeping the peace, had reasonable grounds to believe that disorderly conduct by an assemblage of three or more persons was occurring at the time he issued the command to disperse, that the command was given in a manner reasonably calculated to be communicated to the assemblage of which defendant was a part, and that defendant willfully refused to obey the command. These were all of the elements required to support the jury's verdict finding defendant guilty as charged.
Finally, defendant assigns error to several portions of the jury charge, contending that the trial judge instructed the jury as to unconstitutional statutes. Defendant's arguments hereunder, however, are essentially those referred to earlier in our discussion of the motion to quash the warrant, and need not be repeated here. Considered as a whole, the charge was free from prejudicial error.
We have also carefully examined all of defendant's remaining exceptions and assignments of error which are brought forward in his brief, and in the trial and judgment imposed find
No error.
BROCK, C. J., and BALEY, J., concur.