State v. BeasleyState v. Beasley
The constitutionality of this state‘s riot statute,
The appellee-defendant filed a motion to dismiss the information. The trial judge, in an extensive order, directly held the statute facially unconstitutional. We have jurisdiction pursuant to
We reverse the trial court and hold the statute is constitutional upon our authoritative, limiting construction. We affirm, however, the order dismissing the information on the grounds that it contains insufficient allegations under
We have a responsibility to avoid a holding of unconstitutionality if a fair construction of the statute can be made within constitutional limits. The United States Supreme Court recognized this restrictive construction doctrine in Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). The Fourth Circuit Court of Appeals adopted this doctrine in United States v. Cassiagnol, 420 F.2d 868 (4th Cir.1970), cert. den. 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654. The Fifth Circuit Court of Appeals acknowledged the restrictive constitutional construction doctrine in Wiegand v. Seaver, 504 F.2d 303 (5th Cir.1974). In that case the court struck down our disorderly conduct statute because we had not authoritatively and restrictively construed the statute‘s application so that it applied solely to that speech which the state could constitutionally regulate. We previously applied this restrictive construction doctrine in State v. Ecker, 311 So.2d 104 (Fla. 1975).
The subject statute,
“All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in
§ 775.082 ,§ 775.083 , or§ 775.084 .”
The term “riot” is not defined in the statute and, therefore, the common law definition must be applied. Fields v. State, 85 So.2d 609 (Fla. 1956); Smith v. State, 80 Fla. 315, 85 So. 911; See 77 C.J.S. Riot § 1 a, pp. 421-422. The term “riot” at common law is defined as a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner. 1 Hawkins on Pleas of the Crown 513 (8th Ed. 1824); Ballantine‘s Law Dictionary 1121 (3d Ed. 1969); Black‘s Law Dictionary 1490 (4th
When considering the offense of inciting to riot, the words uttered by such person or the act done by him must be such as to support a finding that they were said or done with intent to provoke a riot. In the light of all the circumstances, the language used must clearly intend to incite a breach of the peace. Commonwealth v. Egan, 113 Pa.Super. 375, 173 A. 764 (1934). We recognize that our statute may not be used to interfere with an individual‘s right to free speech. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). For our statute to be constitutional, the words used must be such that they advocate violence and tend to incite an immediate breach of the peace.
Appellee contends that the term “riot” as used at common law is so vague that a citizen of common intelligence must guess at its meaning. We disagree. We believe that citizens understand the term “riot” to mean a group acting defiantly and unlawfully in a violent manner. In fact, the term probably has a better common understanding by a citizen than the term “disorderly conduct” or “loitering” as they have been used and upheld by federal courts in Shuttlesworth v. Birmingham, supra, and United States v. Cassiagnol, supra.
We hold
With reference to the offense of inciting or encouraging a riot, the charging document must establish circumstances justifying a clear and present danger of a riot in accordance with its elements as heretofore set out and that the language used by the defendant tended to incite the persons assembled to an immediate breach of the peace. Conduct which involves a clear and present danger of force or violence is not constitutionally protected even though it is intertwined with protected speech and conduct. It is no abridgment of free speech or assembly to make criminal the promoting, encouraging, and aiding of an assembly, the purpose of which is to wreak violence. Cole v. Arkansas, 338 U.S. 345, 70 S.Ct. 172, 94 L.Ed. 155 (1949).
The legislature could adopt a statute which expressly defines the offense of riot, such as is contained in the federal statute,
The circumstances in the present case may or may not justify a charge for inciting a riot. The facts are not sufficiently before us. The information as drawn is clearly inadequate. See
We reverse the holding of the trial judge that the statute is facially unconstitutional.
It is so ordered.
ADKINS, C.J., and ROBERTS, BOYD and ENGLAND, JJ., concur.