State v. Allred

204 S.E.2d 214 (1974) 21 N.C. App. 229

STATE of North Carolina
v.
Paul Gilbert ALLRED et al.

No. 735SC197.

Court of Appeals of North Carolina.

April 17, 1974. Certiorari Denied and Appeal Dismissed June 4, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Henry T. Rosser, Raleigh, for the State.

Smith, Patterson, Follin & Curtis by Norman B. Smith, Greensboro, for defendants appellants.

Certiorari Denied and Appeal Dismissed by Supreme Court June 4, 1974.

PARKER, Judge.

Prior to arraignment for trial de novo in the Superior Court, defendants appeared through counsel before Judge Winifred T. Wells, presiding at the 17 July 1972 Criminal Session of Superior Court in New Hanover County, and moved to quash the warrant in each case on the grounds (1) the proclamation declaring the state of emergency referred to G.S. § 160-20.2, which provided for cooperation between law enforcement officers of different political subdivisions in event of a declared emergency, and made no reference to G.S. § 14-288.12 (sic); (2) the proclamation was issued without any notice and hearing for defendants; and (3) there was no clear and present danger existing, either when the proclamation was issued or when defendants were arrested, which would justify interfering with their freedom of expression and assembly. The motions to quash were denied, which action is the subject of appellants' first assignment of error. There was no error in denial of the motions to quash.

"In this jurisdiction the rule is well established that a warrant may be quashed only for its failure to charge a crime or a lack of jurisdiction of the court to try the case—defects which appear on the face of the record. In ruling upon a motion to quash the judge rules only upon a question of law. He is not permitted to consider ``extraneous evidence,' that is, the testimony of witnesses or documents other than the specific statutes or ordinances involved." State v. Underwood, 283 N.C. 154, 195 S.E.2d 489. In the present cases the warrants charged defendants with willful failure to comply with the proclamation issued by the Chairman of the Board of County Commissioners by using Hugh MacRae Park between the hours of 7:00 p. m. and 7:00 a. m. on 14 November 1971. Use of the park at that time was specifically prohibited by the proclamation. Issuance of the proclamation was authorized by the ordinance, which in turn was authorized by G.S. § 14-288.13, by which a portion of the State's police power was delegated to the governing bodies of the counties of this State. A similar delegation of police power to the governing bodies of municipalities, made by G.S. § 14-288.12, was held constitutional in State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449. That the proclamation made no reference to the statute in no way affected its validity; the existence of the statute, not reference to it in the proclamation, was all that mattered. Thus, the face of the warrants charged defendants with committing an act which by G.S. § 14-288.13(d) is made a misdemeanor. No defect appears on the face of the record, and defendants' motions to quash the warrants were properly denied by Judge Wells.

Upon trial of these cases before Judge Edward B. Clark and a jury, Judge Clark ruled as a matter of law that the proclamation was valid and constitutional, and accordingly instructed the jury that the only question before the jury was whether the defendants had violated the proclamation. In this we find no error. The limited delegation of the State's police power which our Legislature deemed wise to grant by G.S., Chap. 14, Art. 36A, to local governmental units in order to assist them in maintaining public peace and order during periods of emergency was, as above noted, held constitutional in State v. Dobbins, supra. That statute authorizes local governments to permit imposition of certain specified and limited prohibitions and restrictions during a "state of emergency," which is defined by G.S. § 14-288.1(10) as:

"The condition that exists whenever, during times of public crises, 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."

The statute, G.S., Chap. 14, Art. 36A, is the result of experience of recent years which has made us all too painfully aware that local disturbances may suddenly erupt with tragic consequences into massive public disorders. The statute wisely provides for placing in local executive officials, whose first and primary duty it is to maintain public order, powers adequate to their responsibilities. Thus, the initial decision as to whether a "state of emergency" in fact exists must be made by those who bear primary responsibility and who are closest to the scene. Their decision, however, while entitled to great respect, is not conclusive or entirely free from judicial review. The local official may not act arbitrarily or without some factual basis to support his determination that a state of emergency in fact exists, and the prohibitions and restrictions which he imposes must be among those authorized by the statute, G.S. § 14-288.12(b). The scope of judicial review in cases such as this is thus limited to the type of review which traditionally is for the judge, and not for the jury, to perform. In the present case the record amply supports Judge Clark's determination that Chairman Harriss, on the basis of personal knowledge and reliable information, had reasonable grounds to believe and did believe that a state of emergency as defined in the statute existed and that his issuance of the proclamation was not arbitrary or capricious. The extremely limited restrictions imposed by the proclamation, which only prohibited use of the public parks at night and forbade "transportation of dangerous arms or substances," were clearly among those authorized by G.S. § 14-288.12(b). Judge Clark committed no error in determining as a matter of law that the proclamation was valid and in so instructing the jury.

We note appellants' contention that the proclamation, though valid on its face, cannot be a proper basis for a criminal charge against them because it was issued and applied in a discriminatory manner. In this connection they contend that it was issued because of and was primarily directed against the activities of ROWP and its members. If this be so, however, there was no evidence that the ordinance was enforced in any discriminatory manner. On the contrary, the evidence showed that others desiring to use the park for such innocent pursuits as playing baseball were similarly denied its use during the prohibited hours. That the activities of ROWP may have been a major factor in bringing on the conditions which prompted declaration of the state of emergency furnishes no valid support for the contention that that organization and its members were unfairly discriminated against. Their activities may have triggered issuance of the proclamation, but once it was issued it was uniformly enforced as to all, at least insofar as the present record discloses.

Nor are we impressed by appellants' contentions that enforcement of the proclamation abridged their First Amendment rights to free speech and to peaceably assemble. No restraint whatsoever was imposed upon speech, and the only restraint imposed on the right of assembly was the prohibition against use of public parks during nighttime hours. Under the circumstances, this very limited restriction was clearly reasonable.

We also find no merit in appellants' several assignments of error to the court's charge to the jury. Where, as here, the uncontradicted evidence, if true, establishes a defendant's guilt as a matter of law, the court may instruct the jury to return a verdict of guilty if it finds such evidence to be true beyond a reasonable doubt. State v. Kimball, 261 N.C. 582, 135 S.E.2d 568. The peremptory instruction was appropriate in the present case and was in approved form.

In the trial and judgments imposed we find

No error.

BROCK, C. J., and HEDRICK, J., concur.