State v. Leigh

179 S.E.2d 708 (1971)

278 N.C. 243

STATE of North Carolina v. Phillip LEIGH.

No. 23.

Supreme Court of North Carolina.

March 10, 1971.

*710 Attorney General Robert Morgan and Staff Attorney Ernest L. Evans, for the State.

John H. Harmon, New Bern, for defendant.

BRANCH, Justice:

Defendant contends that the trial court committed prejudicial error in not allowing his motion for nonsuit and in denying his motion to set aside the verdict as being against the weight of the evidence.

G.S. § 14-223 provides:

"If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both."

Unquestionably, Deputy Sheriff Peel was discharging or attempting to discharge a duty of his office when he began an investigation of a crime reported to him by eyewitnesses, under circumstances which appeared to threaten a further breach of the peace.

We therefore consider whether the actions of defendant were such as to "resist, delay or obstruct Officer Peel while he was discharging or attempting to discharge the duties of his office."

In Webster's New International Dictionary the word "obstruct" is defined: "Hinder from passing, action, or operation; * * * to be or come in the way of"; and "delay" is defined, "to stop, detain, or hinder for a time; * * * to cause to be slower or to occur more slowly than normal." In Black's Law Dictionary "resist" is defined: "To oppose. This word properly describes an opposition by direct action and quasi forcible means." "Obstruct" is defined: "To hinder or prevent from progress, check, stop, also to retard the progress of, make accomplishment of difficult and slow."

In Wharton's Criminal Law and Procedure, Vol. 3, Obstructing Justice, Section 1284, pp. 633 and 634, it is stated:

"As a general rule, under statutes containing the words `obstruct, resist, or oppose,' *711 or `resist, obstruct, or abuse,' or the single word `resist' the offense of resisting an officer can be committed without the employment of actual violence or direct force, and without making threats. * * * "To `obstruct' is to interpose obstacles or impediments, to hinder, impede, or in any manner intrude or prevent, and this term does not necessarily imply the employment of direct force or the exercise of direct means."

In the case of State v. Estes, 185 N.C. 752, 117 S.E. 581, this Court construed former C.S. 7140, which in part provided that "any person or persons who willfully interfere with or obstruct the officers of the state board of health in the discharge of any of the aforementioned duties shall be guilty of a misdemeanor * * *." In construing this statute the Court said:

"Section 7140 contains the words `willfully interfere with or obstruct.' To procure a conviction under this section the State must show that the officer was obstructed or interfered with, and that such obstruction or interference was willful on the part of the defendant. We do not hold that actual violence or demonstration of force is indispensable to such obstruction or interference. To `interfere' is to check or hamper the action of the officer, or to do something which hinders or prevents or tends to prevent the performance of his legal duty; and to `obstruct' signifies direct or indirect opposition or resistance to the lawful discharge of his official duty."

For other cases upholding conviction for obstructing justice in the absence of violence or direct force, see: United States v. Lukins, 3 Wash.C.C. 335, Fed.Cas.No. 15,639; United States v. McDonald, 8 Biss. 439, Fed.Cas.No. 15,667; Drifoos v. Jonesboro, 107 Ark. 99, 154 S.W. 196; Reed v. State, 103 Ark. 391, 147 S.W. 76; State v. Scott, 123 La. 1085, 49 So. 715; Woodworth v. State, 26 Ohio St. 196. See also Note "Obstructing Officer," 48 A.L.R. 746.

As used in G.S. § 14-223, the words "delay" and "obstruct" appear to be synonymous. Perhaps the word "resist" would infer more direct and forceful action. However, since the words describing the act are joined by the disjunctive (or), the statute will apply to cases falling within any one of the descriptive words. Davis v. N. C. Granite Corporation, 259 N.C. 672, 131 S.E.2d 335; Patrick v. Beatty, 202 N.C. 454, 163 S.E. 572.

The language and conduct of defendant occurred in a setting in which a lone police officer, in response to a report that a crime had been committed, went to the main street of Creswell, North Carolina, at approximately 11:30 P.M., to investigate the alleged crime. He found about 25 people in the area, including "a bunch of boys from Columbia [who] kept me from talking to Blount also. They were interfering with me." Blount was sitting in defendant's automobile with defendant and at least one other person. There were two plainly visible shotguns lying in defendant's automobile. Upon this background the State, in instant case, offered evidence which tended to show that defendant's actions and his loud, raucous and abusive language delayed and obstructed for a period of several minutes the officer's attempt to continue his investigation by talking to Raymond Blount. Further, the evidence tended to show that when Raymond Blount left defendant's automobile and entered the officer's automobile, defendant followed, and by his continuing acts and language forced the officer to leave the scene in order to talk to Blount.

Conceding that no actual violence or force was used by defendant, application of the descriptive words of the statute in their common and ordinary meaning, or as interpreted by the courts, to the facts of this case leads us to conclude that there was plenary evidence to support a jury finding that defendant did by his actions and language delay and obstruct the officer in the performance of his duties.

*712 Neither does this record show abuse of discretion in the trial court's denial of defendant's motion to set aside the verdict as being against the greater weight of the evidence, since there was sufficient evidence to support the verdict. Robinette v. Wike, 265 N.C. 551, 144 S.E.2d 594; State v. Reddick, 222 N.C. 520, 23 S.E.2d 909.

We agree with the Court of Appeals that although the warrant upon which defendant was tried "is not a model one," we think it was sufficient to charge an offense under the statute.

Defendant also contends that his constitutional rights were violated by indicting, prosecuting and convicting him of engaging in a constitutionally protected activity. He cites and relies heavily upon the case of Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572. In that case the defendant burned an American flag on a New York Street corner, and among other statements, said: "We don't need no damn flag." The defendant was charged with and convicted under a new statute which made it a misdemeanor "publicly [to] mutilate, deface, defile * * * or cast contempt upon, either by words or act [any flag of the United States]." In reversing his conviction, the United States Supreme Court in a five to four decision held that the accused had a constitutional right publicly to express his opinion about the flag, even when it was contemptuous and defiant. The Court held that he could not be punished for his public utterances. The Court further held that since it could not be determined whether the accused's words were the sole basis for his conviction, or whether he was convicted for both his words and his deeds, his conviction could not be permitted to stand.

Instant case differs from Street v. New York, supra, in that in Street defendant's speech constituted a violation of the statute merely because of the content of the words spoken. Here, the offense involved not the content of the words spoken but defendant's continued integrated course of conduct which prevented Deputy Peel from conducting his investigation.

Freedom of speech is not an unlimited, unqualified right. Speech may be subordinated to other values and considerations, and may be reasonably restrained as to time and place. State v. Wiggins, 272 N.C. 147, 158 S.E.2d 37; Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. It is well settled that, within proper limits, the right of free speech is subject to legislative restriction when such restriction is in the public interest. Valentine v. Chrestensen, 316 U.S. 52, 62 S. Ct. 920, 86 L. Ed. 1262.

When a course of conduct has been otherwise properly declared illegal, there is no abridgement of freedom of speech because the illegal conduct is initiated or carried out by the spoken or written word. The constitutional right of freedom of speech does not extend its immunity to conduct which violates a valid criminal statute. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834. Neither does the protection of the First Amendment extend to every use and abuse of the spoken and written word. Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117.

In the case of Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625, it is stated:

"* * * To state that individual liberties may be affected is to establish the condition for, not to arrive at the conclusion of, constitutional decision. Against the impediments which particular governmental regulation causes to entire freedom of individual action, there must be weighed the value to the public of the ends which the regulation may achieve. Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470; Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137; American Communications Ass'n v. Douds, 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925."

*713 The provisions of G.S. § 14-223 provide for safeguards that are essential to the welfare of the public. The necessity for adequate protection of life and property of the individual has never before been so real and demanding as in this era, when disrespect for the law and those who enforce it has become rampant. The purpose of the statute is to enforce orderly conduct in the important mission of preserving the peace, carrying out the judgments and orders of the court, and upholding the dignity of the law. When the limited restrictions imposed by the statute are weighed against the constitutional guarantees, the value of the restrictions to public need demands that the restrictions in the statute be enforced.

We do not think that the First or Fourteenth Amendment to the United States Constitution precludes prosecution and conviction of defendant for violation of the provisions of a criminal statute enacted in the public interest.

A more serious question is presented by defendant's contention that the trial judge failed to explain and apply the law to the evidence. He contends that under the charge as given the jury could have easily convicted defendant of the mere exercise of free speech which is constitutionally protected.

The general rule is that merely remonstrating with an officer in behalf of another, or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties. 39 Am.Jur., Obstructing Justice, Sec. 10, p. 508; Anno: Obstructing Officer, 48 A.L. R. at 753; People v. Magnes, Gen.Sess., 187 N.Y.S. 913; City of Chicago v. Brod, 141 Ill.App. 500. It logically follows that a citizen may advise another of his constitutional rights in an orderly and peaceable manner while the officer is performing his duty without necessarily obstructing or delaying the officer in the performance of his duty. People v. Pilkington, 199 Misc. 665, 103 N.Y.S.2d 64.

In the charge in instant case the trial judge stated defendant's contentions as follows:

"He says and contends, members of the jury, that he was advising one Raymond Blount of his rights under the Constitution of the United States of America, to wit, the Fifth Amendment. However, he says and contends that the words that he used were not intended to in any way hinder, delay, obstruct or otherwise resist the officer in his attempt to carry out his duties or to investigate the situation at Boone's shop or place of business, to determine whether or not any law had been violated there. And he says and contends that under all of the evidence in this case you should have a reasonable doubt of his guilt and that you should return as to him a verdict of not guilty."

Nowhere in the charge did the trial judge explain the law or apply the law to the evidence concerning defendant's contention. Of course, if all defendant did was to advise Blount of his constitutional rights in an orderly and peaceable manner, defendant would not be guilty of the offense charged. It was error for the trial judge to fail to so charge. Neither did the court in its charge apply the law to the facts which the State contends would support a verdict of guilty.

For error in the charge there must be a new trial.

We do not deem it necessary to consider defendant's other assignments of error since they may not recur at the next trial.

This case is remanded to the North Carolina Court of Appeals with direction that it remand it to Superior Court of Washington County for a new trial in accordance with the principles herein stated.

New Trial.