State v. Dobbins

178 S.E.2d 449 (1971) 277 N.C. 484

STATE of North Carolina
v.
Preston Eugene DOBBINS.

No. 57.

Supreme Court of North Carolina.

January 20, 1971.

Atty. Gen. Robert B. Morgan, Asst. Atty. Gen. William W. Melvin and T. Buie Costen, for the State.

Chambers, Stein, Ferguson & Lanning, by James E. Ferguson, II, and Robert Harrell, Charlotte, for defendant.

LAKE, Justice.

Each of the findings of fact made by the Superior Court at the hearing upon the motion to quash the warrant is amply supported by evidence. There is not a shred of evidence to the contrary. It is quite clear that at 3 p. m. on 29 September 1969, the City of Asheville was faced with an imminent threat of widespread burning and other destruction of property, public and private. Emotional tension was prevalent. Tragic experiences in other cities across the nation were a reminder that, if those who threatened the destruction of property began to carry out that threat, violence would probably erupt throughout the city, resulting in numerous personal injuries and much bloodshed. The danger was clear and present, the time remaining for preventive measures a matter of hours. Under these circumstances, the contention of the defendant, that the Constitution of the United States and the Constitution of North Carolina forbid the city authorities to declare a state of emergency and to proclaim and enforce a temporary, night-to-night, city-wide curfew, with specified exceptions for emergency and necessary travel, is patently without support either in authority or logic.

The fact that, during the three nights in which this curfew was in effect, there was no such destruction and violence in the city does not support the defendant's assertion that the proclamation of the curfew was unnecessary and was an unreasonable restraint upon the liberty of the people of the city, including the defendant. On the contrary, it is an indication that Mayor Montgomery, a doctor, exercised sound judgment and prescribed an effective preventive measure. This experience of the City of Asheville is further evidence supporting the view that the danger to the public safety from conditions, such as existed in the city during the afternoon of 29 September, rises to a peak with the arrival of darkness and then subsides quickly in the face of resolute declarations of policy by the city administration and firm, fair enforcement of the applicable laws by an efficient police force. Experience in other cities also has demonstrated the efficacy of a preventive curfew promptly imposed. See: "Judicial Control of the Riot Curfew," 77 Yale Law Journal 1560, 1568; "Legislation and Riot," 35 Brooklyn Law Review 472, 479. In this instance, the City of Asheville was fortunate in having the effective preventive medicine prescribed and administered promptly.

Of course, the right to travel upon the public streets of a city is a part of every individual's liberty, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by the Law of the Land Clause, Article I, § 17, of the Constitution of North Carolina. The familiar traffic light is, however, an ever present reminder that this segment of liberty is not absolute. It may be regulated, as to the time and manner of its exercise, when reasonably deemed necessary to the public safety, by laws reasonably adapted to the attainment of that objective. The constitutional protection of the freedom of travel "does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area." Zemel v. Rusk, 381 U.S. 1, 15, 85 S. Ct. 1271, 1280, 14 L. Ed. 2d 179, 189. The statement in Kent v. Dulles, 357 U.S. 116, 78 S. Ct. 1113, 2 L. Ed. 2d 1204, "The right to travel is a part of the `liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment," (emphasis added) recognizes that this is a right which can be restricted with due process of law. See, Zemel v. Rusk, supra. The Zemel and Kent cases involved the right to a passport for international travel and were applications of the Fifth Amendment rather than the Fourteenth. However, these principles, there stated, apply also to the effect of the Fourteenth Amendment upon state imposed restraints on intracity travel.

The police power of the State extends to all the compelling needs of the public health, safety, morals and general welfare. Likewise, the liberty protected by the Due Process and Law of the Land Clauses of the Federal and State Constitutions extends to all fundamental rights of the individual. It is the function of the courts to establish the location of the dividing line between the two by the process of locating many separate points on either side of the line. So long as this Court sits, it will be engaged in that process, but it is not necessary or appropriate in the present instance to attempt to draw sharply, throughout its entire length, the line between the right of the individual to travel and the authority of the State to limit travel. It is sufficient, for the present, to hold, as we do, that the Asheville curfew proclamation falls well over on the side of reasonable restriction.

Even as to those major segments of individual liberty, expressly protected from Federal restraint by the First Amendment to the Constitution of the United States, governmental protection of the public safety "from present excesses of direct, active conduct are not presumptively bad." American Communications Association, C. I. O. v. Douds, 339 U.S. 382, 399, 70 S. Ct. 674, 684, 94 L. Ed. 925, 944. As Mr. Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357, 373, 47 S. Ct. 641, 647, 71 L. Ed. 1095, 1105:

"Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights. * * * These may not be denied or abridged. But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral."

In West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S. Ct. 578, 581, 81 L. Ed. 703, 708, Mr. Chief Justice Hughes, speaking for the Court, said:

"Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process."

The defendant contends that the right to travel is related to the First Amendment freedoms of speech, assembly and religion. If so, this does not render it immune to restriction by State law, reasonably necessary for the protection of the public safety in view of prevailing conditions and reasonably calculated to promote such safety under those conditions. Of course, the right to travel on the public streets is a fundamental segment of liberty and, of course, the absolute prohibition of such travel requires substantially more justification than the regulation of it by traffic lights and rules of the road.

We do not have before us a prolonged curfew, imposed by an unduly fearful or arbitrary official upon a serene and peaceful city engaged in its normal pursuits. We have before us a temporary prohibition of travel in a city faced with a clear and present danger of violent upheaval, accompanied by widespread destruction of property and personal injury. To prevent, control and terminate such an upheaval is the primary function of government. Neither the Fourteenth Amendment nor Article I, § 17, of the State Constitution prevents the City Government of Asheville from discharging this duty owed by it to the people of the city.

The ultimate cause of the restraint upon this fundamental freedom of the law abiding citizens of Asheville was not the city government, but the arrogantly lawless portion of the people, who threatened the city with destruction if their demands were not met. In this situation, the reasonableness or unreasonableness of those demands is immaterial. The police power of the State is broad enough to sustain the promulgation and fair enforcement of laws designed to restore the right of safe travel by temporarily restricting all travel, other than necessary movement reasonably excepted from the prohibition. As the Supreme Court of Wisconsin said, in Ervin v. State, 41 Wis. 2d 194, 163 N.W.2d 207:

"Whatever the cause, given the fact of widespread riotous conditions and criminal activities, the restoration of `domestic tranquillity' becomes, not alone a constitutional right, but a constitutional obligation. The temporary imposition of a curfew, limited in time and reasonably made necessary by conditions prevailing, is a legitimate and proper exercise of the police power of public authority."

Neither the Constitution of the United States nor the Constitution of this State requires the city authorities to delay such action until fires have been ignited and rioting has commenced. All that is required is the existence of a clear and present danger of such disastrous and unlawful conduct. This condition existed in Asheville when the curfew here in question was proclaimed, according to the record before us.

The defendant does not suggest that the curfew was not fairly enforced in Asheville. The officer, who approached his vehicle, inquired as to the reason for the presence on the street of the defendant and his driver. Such inquiry was proper in order to determine whether these individuals were traveling for an excepted purpose. The officer was not bound to accept as true the response of the driver, especially after observing the butt of a gun protruding from papers on the floor of the back seat, easily within the reach of the defendant.

The City of Asheville has no inherent police power, Town of Conover v. Jolly, 277 N.C. 439, 177 S.E.2d 879; State v. Furio, 267 N.C. 353, 148 S.E.2d 275; State v. Byrd, 259 N.C. 141, 130 S.E.2d 55; G.S. 160-1. However, by G.S. § 14-288.12, the State has delegated this portion of its police power to its municipalities. This statute authorizes the city to enact an ordinance, such as the one here involved, prohibiting the movement of people in public places "during a state of emergency" as defined in G.S. § 14-288.1(10). It provides that such ordinance may delegate to the mayor the authority to determine and proclaim the existence of such state of emergency and to impose such restriction upon travel "appropriate at a particular time."

The statute provides that it is intended to supplement and confirm authority conferred upon municipalities by other statutes "to enact ordinances for the protection of the public health and safety in times of riot or other grave civil disturbance or emergency." The "state of emergency" which is the condition precedent to the exercise of this power by the city is defined as "the condition that exists whenever, during times of public crisis, disaster, rioting, catastrophe, or similar public emergency, public safety authorities are unable to maintain public order or afford adequate protection for lives or property, or whenever the occurrence of any such condition is imminent." (Emphasis added.) The defendant's contention that this statute is unconstitutionally vague, in that it fails to provide a standard for the exercise of the discretion conferred, is clearly without merit.

The ordinance of the City of Asheville establishes the same standard for the guidance of the Mayor in determining the existence of a state of emergency. The Mayor acted in compliance with the prescribed standard. Thus, the police power of the State was properly exercised in the proclamation of the state of emergency and in the proclamation of the curfew presently before us.

The presence of the defendant and his driver upon the streets, while the curfew was in effect, was a violation of the ordinance, declared thereby to be a misdemeanor, unless they were traveling for an excepted purpose. The arresting officer having, at least, reasonable ground to belive that the defendant had committed a misdemeanor in his presence, the arrest without a warrant was lawful. G.S. § 15-41. The search of the defendant's person was incidental to such arrest and, consequently, the four shotgun shells found tucked in the tops of his boots, were properly admitted in evidence. State v. Roberts, 276 N.C. 98, 171 S.E.2d 440; State v. Tippett, 270 N.C. 588, 155 S.E.2d 269; State v. Haney, 263 N.C. 816, 140 S.E.2d 544.

G.S. § 14-288.7 makes it a misdemeanor for any person "to transport or possess off his own premises any dangerous weapon or substance in any area: (1) In which a declared state of emergency exists." G.S. § 14-288.1(2) defines "Dangerous weapon or substance" to mean "Any deadly weapon, ammunition * * * or any instrument or substance designed for a use that carries a threat of serious bodily injury or destruction of property; or any instrument or substance that is capable of being used to inflict serious bodily injury, when the circumstances indicate a probability that such instrument or substance will be so used; or any part or ingredient in any instrument or substance included above, when the circumstances indicate a probability that such part or ingredient will be so used." (Emphasis added.)

When the defendant's driver got out of the car, the highway patrolman, standing outside the vehicle, could see by the street lights two inches of a gun butt protruding from papers on the floor of the back seat. The contention of the defendant that this was not enough of the article to enable the highway patrolman to identify it as the butt of a gun cannot be taken seriously. Surely a member of the State Highway Patrol is as familiar with the appearance of such objects as is a normal ten year old boy. Seeing this object, imperfectly concealed within easy reach of the defendant, who was still seated in the car, the patrolman clearly had authority to take it into his possession, and its admission into evidence was proper. Similarly, the admission into evidence of the shotgun shell found on the rear seat of the automobile was proper. No search warrant is required to render competent in evidence an object seen in an automobile under such circumstances by an officer standing outside the vehicle. State v. Howard, 274 N.C. 186, 162 S.E.2d 495; State v. Craddock, 272 N.C. 160, 158 S.E.2d 25.

In removing what turned out to be a detached gun stock, the officer struck it against the gun barrel concealed beneath the papers on the floor. The subsequent uncovering and removal of the gun barrel from the automobile was a mere continuation of the lawful removal of the gun stock and did not constitute an unreasonable search forbidden by the Fourth and Fourteenth Amendments to the Constitution of the United States. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.1975, 26 L. Ed. 2d 419; State v. Jordan, 277 N.C. 341, 177 S.E.2d 289. Clearly, probable cause existed to look beneath the papers for the barrel of the gun. We find no error in the admission of the shotgun barrel into evidence, but if it were error, it was harmless, since the possession of the ammunition and the other part of the gun would constitute the offense with which the defendant was charged by this warrant.

The overruling of the defendant's motion for nonsuit in each case was not error. The defendant's contention that the burden was on the State to prove that his presence on the streets was for a purpose other than those excepted by the ordinance and by the curfew proclamation is without merit. In State v. Connor, 142 N.C. 700, 55 S.E. 787, Hoke, Justice, later Chief Justice, speaking for the Court, said.

"It is well established that, when a statute creates a substantive criminal offense, the description of the same being complete and definite, and by subsequent clause, either in the same, or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution. In such circumstance, a defendant charged with the crime, who seeks protection by reason of the exception, has the burden of proving that he comes within the same."

To the same effect is State v. Davis, 214 N.C. 787, 1 S.E.2d 104.

To hold otherwise would render the enforcement of the curfew impossible, since, the defendant remaining silent, as here, the State could never prove that his purpose in being upon the streets was not one of those excepted by the law. Consequently, the evidence for the State clearly established the defendant's violation of the curfew ordinance by his unexplained presence on the streets.

The shells stuck in his shoe tops, the gun parts lying on the floor of his automobile, within his easy reach, and the shell lying on the back seat of the vehicle were all within the possession of the defendant, he having the immediate power of control over them. State v. Jones, 213 N.C. 640, 197 S.E. 152. Consequently, the evidence of the State, if believed by the jury, was sufficient to support a finding of each element of the offense charged in the warrant relating to possession of a dangerous weapon.

Since G.S. § 14-288.7, itself, makes the possession of the disassembled shotgun and the shotgun shells in the area in question a criminal offense and specifies the penalty therefor, and since the warrant relating to this offense is founded upon the statute, not the ordinance, the sentence imposable in that case is not limited to the penalty prescribed for such conduct by the ordinance. The sentence imposed does not exceed that authorized by G.S. § 14-288.7(c).

The consolidation for trial of the two charges against the defendant was not error. Both arose out of the same course of action and the same evidence used to prove the commission of the one would be competent and admissible in the trial of the other. Under such circumstances, the consolidation of the two cases for trial, so as to save the time of the court and the witnesses, was a matter in the discretion of the trial judge. State v. White, 256 N.C. 244, 123 S.E.2d 483; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250; State v. Combs, 200 N.C. 671, 158 S.E. 252; G.S. § 15-152.

It was not error to deny the defendant's request that, if he elected to take the stand and testify with reference to the charge of curfew violation only, the State be limited in its cross examination to that matter and not be permitted to cross examine him concerning his possession of the disassembled shotgun and the shotgun shells. The court was not required, in advance of the defendant's taking the stand, to rule upon the limits of permissible cross examination. Furthermore, the defendant's presence upon the street at the time of his arrest constituted a violation of the curfew ordinance, unless it was for a purpose excepted by the act or otherwise justified by law. Under the circumstances, the court not being advised to the contrary, it could assume that any testimony by the defendant, relating to the charge of curfew violation, would be concerned with an effort to establish justification for his presence at that point and time. If the defendant had undertaken to testify to circumstances purporting to bring him within an exception to the ordinance, or other justifiable reason for being on the street, the State would have had the right, upon cross examination, to develop matters reflecting upon the credibility of his story. His possession, at that time and place, of a virtually concealed, though dismantled, shotgun, and of live shells therefor tucked in the tops of his boots—a somewhat unusual receptacle for such articles—might well be inquired into by the State for the purpose of casting doubt upon the alleged purity of his purpose in being upon the street at that time. Thus, the court was correct in refusing to limit the right of cross examination as requested.

The defendant's final assignment of error relates to the refusal of the trial judge, when requested to do so by the defendant, to include in his charge to the jury a reading of the portion of the ordinance relating to the authority of the Mayor to prohibit, during a proclaimed state of emergency, travel upon the public streets except by those so traveling for specified purposes. The entire ordinance was introduced in evidence. The court instructed the jury correctly as to the elements of the offense of curfew violation and that to convict the defendant thereof it must find these elements from the evidence and beyond a reasonable doubt. There being no evidence whatever purporting to bring the defendant within any exception to the ordinance, or otherwise to justify his presence upon the street at the time of his arrest, the court was not required to read to the jury, as part of the charge, the exact language of this section of the ordinance, or to instruct the jury concerning travel purposes not within the prohibition of the ordinance. State v. Mundy, 265 N.C. 528, 144 S.E.2d 572; State v. Williamson, 238 N.C. 652, 78 S.E.2d 763; State v. Durham, 201 N.C. 724, 161 S.E. 398.

In his brief in the Court of Appeals, the defendant asserted, without any further argument upon the point, that the proclamation of the state of emergency and the proclamation of the curfew violated his right to bear arms, guaranteed by the Second Amendment to the Constitution of the United States. This contention was not asserted in the trial court. Consequently, the trial court did not rule thereon. Upon the appeal to the Court of Appeals, no assignment of error related to this question. It is not asserted as a ground of appeal in the notice of appeal to this Court. It is not mentioned in the brief filed in this Court. However, in his brief filed in this Court, the defendant does state that he "reaffirms his arguments made in the Court of Appeals and relies upon the authority cited in his brief therein."

This Court will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court, if it could have been raised therein. State v. Parrish, 275 N.C. 69, 165 S.E.2d 230; State v. Dorsett and State v. Yow, 272 N.C. 227, 158 S.E.2d 15. Consequently, the question of the effect of the Second Amendment to the Constitution of the United States upon G.S. § 14-288.7 and upon the ordinance of the City of Asheville and acts of the Mayor pursuant thereto is not presently before us. We do observe, however, that the Second Amendment to the Constitution of the United States, if it reaches State action at all, reaches it by way of the Due Process Clause of the Fourteenth Amendment and, therefore, would, at the most, forbid only an unreasonable and arbitrary restriction by State or municipal law upon the right to keep and bear arms. At no point in this proceeding has the defendant asserted any right under Article I, § 24, of the Constitution of North Carolina. Thus, we do not have before us any question as to the effect of that provision of the State Constitution upon G.S. § 14-288.7 or upon the ordinance of the City of Asheville or the proclamation of the Mayor pursuant thereto. No opinion with reference thereto is herein expressed. For a discussion of that provision in relation to a different criminal charge, see State v. Dawson, 272 N.C. 535, 159 S.E.2d 1.

There being no merit in any of the defendant's assignments of error, the decision of the Court of Appeals is affirmed.

Affirmed.

MOORE, J., did not participate in the consideration or decision of this case.