{ "id": 1597674, "name": "Joe NEAL et ux v. The Honorable J. E. STILL, Municipal Judge", "name_abbreviation": "Neal v. Still", "decision_date": "1970-06-22", "docket_number": "5-5268", "first_page": "1132", "last_page": "1141", "citations": [ { "type": "official", "cite": "248 Ark. 1132" }, { "type": "parallel", "cite": "455 S.W.2d 921" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "379 U. S. 536", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731584 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/379/0536-01" ] }, { "cite": "372 U. S. 229", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765589 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/us/372/0229-01" ] }, { "cite": "337 U. S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 572361 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/us/337/0001-01" ] }, { "cite": "310 U. S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6138344 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/us/310/0296-01" ] }, { "cite": "384 U. S. 195", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12042915 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0195-01" ] }, { "cite": "243 Ark. 650", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722978 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0650-01" ] }, { "cite": "333 U. S. 507", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6158437 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/us/333/0507-01" ] }, { "cite": "1 P. 2d 64", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1931, "opinion_index": 1 }, { "cite": "117 Cal. App. 763", "category": "reporters:state", "reporter": "Cal. App.", "year": 1931, "opinion_index": 1 }, { "cite": "146 S. W. 862", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "103 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351960 ], "opinion_index": 1, "case_paths": [ "/ark/103/0336-01" ] }, { "cite": "379 U. S. 306", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11730341 ], "weight": 3, "year": 1964, "opinion_index": 1, "case_paths": [ "/us/379/0306-01" ] }, { "cite": "236 Ark. 596", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681316 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/ark/236/0596-01" ] }, { "cite": "95 L. Ed. 267", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1951, "opinion_index": 1 }, { "cite": "340 U. S. 315", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931350 ], "weight": 2, "year": 1951, "opinion_index": 1, "case_paths": [ "/us/340/0315-01" ] }, { "cite": "93 L. Ed. 1131", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1948, "opinion_index": 1 }, { "cite": "239 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730866 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/239/0367-01" ] }, { "cite": "55 S. W. 2d 80", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "186 Ark. 554", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723767 ], "opinion_index": 1, "case_paths": [ "/ark/186/0554-01" ] }, { "cite": "88 S. W. 881", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "76 Ark. 197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1500998 ], "opinion_index": 1, "case_paths": [ "/ark/76/0197-01" ] }, { "cite": "86 S. W. 844", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "75 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502504 ], "opinion_index": 1, "case_paths": [ "/ark/75/0120-01" ] }, { "cite": "379 U. S. 536", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731584 ], "weight": 3, "year": 1965, "opinion_index": 1, "case_paths": [ "/us/379/0536-01" ] }, { "cite": "372 U. S. 229", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765589 ], "weight": 3, "year": 1963, "opinion_index": 1, "case_paths": [ "/us/372/0229-01" ] }, { "cite": "337 U. S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 572361 ], "weight": 2, "year": 1949, "opinion_index": 1, "case_paths": [ "/us/337/0001-01" ] }, { "cite": "310 U. S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6138344 ], "weight": 3, "year": 1940, "opinion_index": 1, "case_paths": [ "/us/310/0296-01" ] }, { "cite": "384 U. S. 195", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12042915 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/us/384/0195-01" ] } ], "analysis": { "cardinality": 873, "char_count": 15550, "ocr_confidence": 0.828, "pagerank": { "raw": 8.567095235512208e-08, "percentile": 0.4883989375442352 }, "sha256": "f9a125abc510fbe8efaef604ea73e68069223da912856a292584780d7df420c8", "simhash": "1:d4e9ef5c67259fe8", "word_count": 2627 }, "last_updated": "2023-07-14T16:47:57.001151+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Fogleman and Jones, JJ., dissent.", "Jones, J., joins in this dissent." ], "parties": [ "Joe NEAL et ux v. The Honorable J. E. STILL, Municipal Judge" ], "opinions": [ { "text": "Lyle Brown, Justice.\nJoe Neal and wife were formally charged, tried, and convicted in the Arkadelphia Municipal Court with willfully violating Ark. Stat. Ann. \u00a7 41-1431 (Repl. 1964), titled \u201cCreating Disturbance on School Property.\u201d The charges stemmed from their activities on the campus of Henderson State College. The pertinent point on appeal here is that the statute is unconstitutional.\nAn appeal to the circuit court was not perfected. Appellants filed in that court a petition which named the municipal judge, Hon. J. E. Still, as the respondent. The petition was styled, \u201cPetition for Certiorari, Petition for Writ of Coram Nobis, and Petition for Writ of Prohibition.\u201d The circuit court granted die petition for certiorari -and after deleting that part of the sentence which was admittedly objectionable, denied -any other relief. That amendment left each appellant with a fine of $500. The part of \u00a7 41-1431 which is relevant to this appeal reads:\nAny person who shall enter upon any public school-property, school cafeteria,' ... in the State of Arkansas, and while therein or thereon shall create- a disturbance, or a breach of the peace, in any way whatsoever, including, but- not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six [6] months, or both such fine and imprisonment.\nAppellants contend the statute is \u201cvoid in that it is vague and overbroad in violation of the fourteenth amendment and productive of a chilling effect on the exercise of rights protected by the first amendment to the Constitution of the United States.\u201d\nA legislative act is unconstitutionally vague which imposes criminal sanction for the doing of- an act, and that act is so nebulously described as to require men of common intelligence to guess at its meaning. Winters v. New York, 333 U. S. 507 (1948). We presume an act of the Legislature to be constitutional and must so hold unless it is clearly incompatible with the Cons titu don; any doubt is resolved in favor of constitutionality. Walden v. Hart, 243 Ark. 650, 420 S. W. 2d 868 (1967). In light of the stated principles we examine and resolve appellants\u2019 contention.\nIt is difficult to conceive of language more vague than that which declares one a law violator when he \u201ccreates\u201d a disturbance or breach of the peace \u201cin any way-whatsoever.\u201d The same is true of language whicb makes it a misdemeanor to use \u201coffensive talk.\u201d Then_ we find a prohibition against \u201cattempting to intirrtfdate,\u201d which is about as vague as one can imagine. Finally, we find in the forbidden category \u201cany other conduct which causes a . . . threatened breach of the peace.\u201d We have no hesitancy in concluding that men of common intelligence would have to guess as to what conduct is proscribed by those phrases.\nThe United States Supreme Court has considered, and unfavorably, a host of -cases involving phraseology similar to that with which we are concerned. In Ashton v. Kentucky, 384 U. S. 195 (1966), there was a conviction for an offense described as \u201cany writing calculated to create disturbances of the peace.\u201d The Court held that language to be so indefinite and uncertain as to be unconstitutionally vague. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the charge of \u201cinciting a breach of the peace\u201d was condemned as being of general and indefinite character. In Terminello v. Chicago, 337 U. S. 1 (1949), an ordinance which as construed punished an utterance as a breach of the peace \u201cif it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.\u201d It was held unconstitutional. For other cases in which convictions for breaches of the peace were reversed because the offenses were imprecisely defined, see Edwards v. South Carolina, 372 U. S. 229 (1963), and Cox v. Louisiana, 379 U. S. 536 (1965). In Ashton the Court said:\n\u201cHere ... we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.\u201d\nThe indefiniteness of penal laws is the subject of a recent annotation in 16 L. Ed. 2d, p. 1231.\nThis brings us to the question of whether the entire \u00a7 41-1431 must fall because of the unconstitutionally vague portions. The different parts of the section are so mutually connected and interwoven as to lead us to believe that the Legislature intended them as a whole. The entire section consists of one sentence. In fact, when the impermissive words and phrases are deleted there remains hardly a skeletal sketch of a section with which to deal. We are further persuaded in that view because any permissible portions of the section are duplicated in misdemeanor statutes of long standing.\nIt is our conclusion that \u00a7 41-1431 should be, and is hereby, declared unconstitutional in its entirety.\nReversed and dismissed.\nFogleman and Jones, JJ., dissent.", "type": "majority", "author": "Lyle Brown, Justice." }, { "text": "John A. Fogleman, Justice,\ndissenting. I respectfully dissent. We should consider this case only in light of the record before us. Appellants did not avail themselves of their right to appeal to the circuit court and have a trial de novo, where there would have been a full record of all proceedings. Instead, they filed a petition for certiorari, writ of error coram nobis, and prohibition. The response to that petition certainly controverts appellants\u2019 statements about the incidents leading to their arrest and conviction. Consequently, we may only review the face of the record. The charge upon which appellants were accused and convicted was:\nComes the undersigned, Deputy Prosecuting Attorney within and for Clark County, Arkansas, and in the name and by the authority of the State of Arkansas, accuses of the crime of creating a disturbance upon a school campus or grounds committed as follows, to-wit: The said defendant in the County and State aforesaid on the 21 day of February, 1969, then and there did unlawfully and willfully create a disturbance in the Student Union Building of H. S. C. by the use of loud and offensive language and by distributing offensive literature designed to incite the emotions of the students of said campus, in violation of Ark. Statutes Section 41-1431 against the peace and dignity of the State of Arkansas.\nThis charge seems to me to be clearly within the purview of the act. In approaching an analysis of the act, we should carefully examine what is prohibited. As I read it, the act does not prohibit any of the enumerated specific conduct unless it creates a disturbance or a breach of the peace. The gist of the offense is the actual creation of a disturbance or a breach of the peace. The words \"in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, Or any other conduct which causes a disturbance of the peace or breach of the peace or threatened breach of the peace\u201d are merely descriptive of conduct which may or may not result in a breach of the peace.\nThis eliminates from consideration such a case as Ashton v. Kentucky, 384 U. S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469 (1966), where the vague language was \u201cany writing calculated to create disturbances . of . the peace, corrupt the public morals or lead to any act, which, when done, is indictable.\u201d That opinion also referred to decisions holding statutes making offenses of conduct \u201ccalculated to create disturbances\u201d unconstitutionally vague. This element of uncertainty is eliminated from the statute before us.\nAs a matter of fact I cannot see that any of the authorities cited by the majority mandates the action taken. A thought which should be-uppermost in considering the particular question we have before us is that every reasonable presumption must be indulged and all doubts resolved in favor of the constitutional validity of-an act of the General Assembly, to the extent that when one construction would make it void for conflict with constitutional provisions and another would make it valid, the latter will be adopted, even though the former is otherwise the more natural interpretation. Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844; State v. Moore, 76 Ark. 197, 88 S. W. 881; State v. Taylor, 186 Ark. 554, 55 S. W. 2d 80; Black v. Cockrill, Judge, 239 Ark. 367, 389 S. W. 2d 881. The construction given an act by state courts has been given primary consideration by the United States Supreme Court. I submit that a construction limiting the offense to conduct which causes a disturbance of the peace or breach of the peace as suggested hereinabove meets constitutional standards.\nThe words breach of the peace have a commonly accepted meaning. It is set out-at 11 C. J. S. 817, Breach of the Peace, \u00a7 1, as follows:\nThe term \u201cbreach of the peace\u201d is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquillity enjoyed by the citizens of a community; a disturbance of the public tranquillity by any act or -conduct inciting to violence-or tending to provoke or excite others to break the peace; a disturbance of public order by an act of violence, or which, by causing consternation and alarm, disturbs the- peace and quiet of the community. The word \u201cpeace,\u201d as used in this connection, means the tranquillity enjoyed by- the citizens of a municipality or a. community where good order reigns among its- members.\nThe inhibitions of Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), do not reach this statute. There, the particular acts involved were held not to have amounted to a breach -of the peace. The court emphasized the fact that there was no showing that Cantwell\u2019s conduct was noisy, truculent, overbearing or offensive. I find language in that opinion appropriate here:\nThe offense known as breach of the peace embraces a great- variety of conduct destroying or menacing public order and tranquillity. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that- religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat- to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.\n* * * The sound of the phonograph is not shown to have disturbed residents of the street, to have drawn a crowd, or to have impeded traffic.\n* * *\nThe essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.\nIn Terminiello v. Chicago, 337 U. S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1948), the trial court instructed the jury that the words \u201cbreach of the peace\u201d included speech which \u201cstirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance.\u201d Reversal there resulted because the ordinance, as construed by the instruction and approved by the state courts, permitted Terminello\u2019s conviction, not just for- speech which created a disturbance, but for speech which only stirred people to anger, invited public dispute or brought about a condition of unrest. It was recognized in that opinion that freedom of speech is protected against censorship or punishment, \u201cunless shown likely to produce a clear and present danger of a serious substantive evil that rises for above public convenience, annoyance or unrest.\u2019\u2019\nIn Edwards v. South Carolina, 372 U. S. 229, 83 S. Ct. 680, 9 L. -Ed. 2d 697 (1963), the court said that the -petitioners were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the view of the majority of the community to attract a crowd and necessitate police action. The court said that the courts of South Carolina, which* had construed the offense as \u201cnot susceptible -of exact definition,\u201d permitted conviction for speech which \u201cstirred people to anger, invited public dispute or brought about a condition of unrest,\u201d citing Terminie.llo.\nIn Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965), the statute was found unconstitutionally vague and-overbroad only because it prohibited \u201ccongregating with others with intent to provoke a breach of the peace or under circumstances such that a breach of the peace may be occasioned.\u201d The reason for holding it unconstitutional was the Louisiana court\u2019s defining of \u201cbreach of the peace\u201d as \u201cto agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.\u201d\nIn both Edwards and Cox the United States Supreme Court recognized that the situations prevailing in those cases were far different from that in Feiner v. New York, 340 U. S. 315, 71 S. Ct. 303, 95 L. Ed. 267 (1951). I say that Feiner constitutes authority for holding our statute constitutional. In Feiner the court found the first paragraph quoted from Cantwell above applicable and appropriate.\nAppellant\u2019s contention that the statute requires neither knowledge nor intent as an element of the crime is answered in Briggs v. State, 236 Ark. 596, 367 S. W. 2d 750, vacated on other grounds sub nom, Hamm v. City of Rock Hill, 379 U. S. 306, 85 S. Ct. 384, -13 L. Ed. 2d 300 (1964). In the statute before us the key word is \u201ccreate.\u201d The term \u201ccreation of a disturbance, breach of the peace or threatened breach of the peace\u201d embodies intentional and willful activity. We have held that if the natural tendency of an act is to cause a disturbance, the intent to disturb is not a necessary element of the offense. Walker v. State, 103 Ark. 336, 146 S. W. 862.\nIf the statute is limited as I suggest at the outset, I have no trouble with the meaning of such terms as \u201cloud and offensive talk,\u201d \u201cthreatened breach of the peace\u201d or \u201cattempting to intimidate.\u201d I think there should be no difficulty on the part of the actor or the victim in ascertaining whether there was an attempt to intimidate.\nI would affirm the judgment of the circuit court.\nJones, J., joins in this dissent.\nThese are synonymous terms. See, e. g., People v. Anderson, 117 Cal. App. 763, 1 P. 2d 64 (1931).", "type": "dissent", "author": "John A. Fogleman, Justice," } ], "attorneys": [ "Rose, Barron, Nash, Williams, Carroll & Clay, By: James Guy Tucker, Jr., for appellants.", "No brief filed for appellee." ], "corrections": "", "head_matter": "Joe NEAL et ux v. The Honorable J. E. STILL, Municipal Judge\n5-5268\n455 S. W. 2d 921\nOpinion delivered June 22, 1970\nRose, Barron, Nash, Williams, Carroll & Clay, By: James Guy Tucker, Jr., for appellants.\nNo brief filed for appellee." }, "file_name": "1132-01", "first_page_order": 1200, "last_page_order": 1209 }