{
  "id": 11301856,
  "name": "STATE OF NORTH CAROLINA v. REV. J. E. ORANGE",
  "name_abbreviation": "State v. Orange",
  "decision_date": "1974-07-03",
  "docket_number": "No. 741SC404",
  "first_page": "220",
  "last_page": "225",
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    "name_abbreviation": "N.C. Ct. App.",
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    "name": "North Carolina Court of Appeals"
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      "cite": "282 N.C. 157",
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  "last_updated": "2023-07-14T16:09:41.671000+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Baley concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. REV. J. E. ORANGE"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant assigns error to the trial court\u2019s 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\u2019s 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\u2019s subsequent refusal to comply.\nNext, 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 believe that disorderly conduct by an assemblage of three or more persons was occurring, a violation of G.S. 14-288.5. \u201cDisorderly conduct\u201d 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:\n\u201c\u00a7 14-288.4. Disorderly conduct.\u2014 (a) Disorderly conduct is a public disturbance intentionally caused by any person who:\n\u201c(1) Engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence; or\n\u201c(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\nDefendant 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\u2019s construction, our Supreme Court said (282 N.C. at p. 168) :\n\u201cThere can be do doubt that the General Assembly intended to prohibit \u2018fighting words,\u2019 words tending to cause an immediate breach of the peace wilfully spoken in a public place, and that [the trial judge\u2019s] interpretation accurately expressed the legislative purpose. At this point we note that the General Assembly by N. C. Sess. Laws, Ch. 668, \u00a7 1 (1971) . . . rewrote Section (a) (2) so that it now reads \u2018[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. . . . \u2019 There is no substantial difference between the 1971 revision and the 1969 version of Section (a) (2) as [the trial judge] construed it.\u201d\nDefendant\u2019s additional argument that this language from Summrell is no longer constitutional under Gooding v. Wilson, 405 U.S. 518, 31 L.Ed. 2d 408, 92 S.Ct. 1103, is wide of the mark; Gooding was decided before and discussed in Summrell.\nDefendant 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\u2019s motion on grounds that \u201cthe defendant is guilty of laches and has failed to move in apt time.\u201d 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\u2019s 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\u2019s counsel failed to request either indigency status or a free transcript for his client, and did not do so until, after one continuance, defendant\u2019s 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\u2019s denial of his belated motion. See State v. Clark, 22 N.C. App. 81, 206 S.E. 2d 252.\nDefendant assigns error to the admission,- over objection, of several portions of the testimony of Sheriff Toppin and Police Captain C. A. Williams, describing the crowd as \u201ctrying\u201d to push its way into the courthouse and the police officers as \u201ctrying\u201d to keep members of the crowd, including the defendant, out of the courthouse. It is clear that the witnesses used the word \u201ctrying\u201d in a purely descriptive sense, describing physical actions rather than the witnesses\u2019 opinion as to motivation.\nDefendant assigns error to the trial court\u2019s 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\u2019s 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, \u201c [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.\u201d 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\u2019s verdict finding defendant guilty as charged.\nFinally, defendant assigns error to several portions of the jury charge, contending that the trial judge instructed the jury as to unconstitutional statutes. Defendant\u2019s 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.\nWe have also carefully examined all of defendant\u2019s remaining exceptions and assignments of error which are brought forward in his brief, and in the trial and judgment imposed we find\nNo error.\nChief Judge Brock and Judge Baley concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Assistant Attorney General Ralf F. Haskell for the State.",
      "Paul, Keenan & Rowan by Jerry Paul for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. REV. J. E. ORANGE\nNo. 741SC404\n(Filed 3 July 1974)\n1. Indictment and Warrant \u00a7 6\u2014 arrest warrant \u2014 sufficiency of affidavit to support\nAn affidavit which stated that the affiant, the county sheriff, ordered a group to disperse from the county courthouse steps and that the affiant personally witnessed defendant\u2019s subsequent refusal to comply with the order was sufficient to support a warrant for defendant\u2019s arrest.\n2. Constitutional Law \u00a7 18; Disorderly Conduct \u00a7 1 \u2014 constitutionality of portion of disorderly conduct statute\nG.S. 14-288.4(a) (2) which defines disorderly conduct as the use of any utterance, gesture, display or abusive language intended and likely to provoke violent retaliation and thereby cause a breach of the peace, when construed to prohibit only words and conduct likely to provoke ordinary men to violence, is not unconstitutionally vague . under the First Amendment,\n3. Constitutional Law \u00a7 30 \u2014 belated motion for free transcript\nWhere defendant failed to make a timely request for a free transcript, he could not complain on appeal of the trial court\u2019s denial of his belated motion to be declared indigent.\n4. Criminal Law \u00a7 50\u2014 use of word \u201ctrying\u201d \u2014 no opinion testimony\nThe trial court did not err in allowing testimony of the' sheriff and police captain describing a crowd as \u201ctrying\u201d to push its way into the courthouse and police officers as \u201ctrying\u201d to keep members of the crowd, including defendant, out of the courthouse, since the witnesses used the word in a purely descriptive sense, describing physical actions rather than the witnesses\u2019 opinions as to motivation.\n5. Disorderly Conduct \u00a7 2\u2014 refusal to obey order to disperse \u2014 sufficiency of evidence\nIn a prosecution for a violation of G.S. 14-288.5 evidence was sufficient to be submitted to the jury where it tended to show that 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 wilfully refused to obey the command.\nOn Certiorari to review defendant\u2019s trial before Copeland, Judge, 10 September 1973 Session of Superior Court held in Chowan County.\nDefendant was charged in a warrant with unlawfully and willfully failing and refusing to disperse when commanded to do so by Sheriff Troy Toppin, a law enforcement officer responsible for keeping the peace, when said officer reasonably believed that disorderly conduct was occurring by the assemblage of three or more persons, a misdemeanor violation under G.S. 14-288.5. After trial and conviction in the district court, defendant appealed to the superior court, where he again pled not guilty. The State offered evidence tending to show: On the morning of 5 June 1973, approximately 30 Negroes were arrested in connection with a protest in Chowan County. They were taken to the \u201cauditorium or seating area\u201d of the Chowan County courthouse, in Edenton, N. C., for processing. While the arrested persons were still inside, approximately 30 or 35 additional Negroes approached the courthouse chanting \u201cwe want to get in the courthouse, we want to get in.\u201d Defendant, a former professional football player who was 30 years old, weighed 368 pounds, and was six feet three inches tall, was at the front of the crowd. When the crowd, which covered the entire front portion of the courthouse, reached the bottom of the three steps leading up to the front door, their path was blocked by several police officers. The members of the crowd, including the defendant, pushed against the riot sticks of the officers. Several times, Chowan County Sheriff Troy Toppin asked the group to disperse. Eight or ten persons obeyed, but twenty-one remained, chanting \u201cwe want to be arrested, go ahead and arrest us\u201d; and \u201cwhy can\u2019t we come in, we want to come in.\u201d These persons, including the defendant, who had remained at the front of the group, were then arrested. Although during the commotion it appears that defendant at one time slipped on the courthouse steps and fell to his knees, he received no injury, and the confrontation ended essentially without violence. The defendant testified to a similar version of events, although he stated that he had never pushed against the officers stationed at the courthouse door. He offered evidence to show that the group was seeking entry into the courthouse in order to protest and to investigate accusations of police brutality towards the previously-arrested Negroes.\nThe jury found defendant guilty as charged, and judgment was entered imposing an active six-month prison sentence. Defendant appealed. To permit perfection of the appeal, this Court subsequently issued writ of certiorari.\nAttorney General Robert Morgan by Assistant Attorney General Ralf F. Haskell for the State.\nPaul, Keenan & Rowan by Jerry Paul for defendant appellant."
  },
  "file_name": "0220-01",
  "first_page_order": 252,
  "last_page_order": 257
}
