Lead Opinion
Dеfendant’s assignments of error raise only two questions: (1) Does each of the
The State’s evidence tends to show the following facts: Ernest Farrington operates the E & R Grocery, a small store on N. C. Highway No. 54 about 4 milеs east of Graham. Between 9:00 and 10:00 p.m. on 24 November 1966, the lights were on both inside and outside the store. The light was also burning on the porch of the Farrington residence across the road from the store. In the front of the grocery were two big windows and a picture window. Farring-ton was alone in the store when a bullet came through the wall about a foot below the right window and struck a television two feet from where he was standing.
At the time the shot was fired, Farrington’s 16-year-old daughter Ernestine and her date, Earl Torrain, were standing in the front yard of the Farrington home. They heard a motor vehicle approach and slow down as if to stop. A noise, which they thought to be a shot, caused them to turn around. They saw a light green or blue, late-model truck speed away toward Graham. It was equipped with metal rods or pipes resembling a rack extending from the end of the bed forward over the cab. Mr. Farrington came out of the store and told Ernestine to tell her mother that somebody had shot into the store and to call the sheriff. He himself, however, immediately crossed the road and called Sheriff Stockard, who arrived in about fifteen minutes.
At about 9:57 p.m., Deputy Sheriff Hargrove, who was driving on Interstate 85, was notified of the shooting by radio from the sheriff’s office. Pie turned off onto N. C. Highway No. 54 about five miles from the E & R Grocery. Two miles out of Graham, he met a truck fitting the description he had received over the radio. He turned around and followed the truck to Pine Street where he stopped it. Defendant Dawson was driving; “four subjects were in the truck” — defendant, Vaughn, Coleman, and Buck. When Hargrove opened the door to the cab he saw a 30-caliber carbine in the floorboard on the right-hand side. On the dashboard were four pistols: a 25-caliber automatic, a 38-caliber pistol, a 22 revolver, and a 22-target pistol. Defendant Dawson said that the target pistol was his and that the’ carbine belonged to Buck. Coleman claimed the 38-caliber pistol. The men unloaded the weapons and turned them over to Hargrove at the time.
At 10:10 p.m., Sheriff Stockard went to Pine Street where the deputy had the truck stopped and then proceeded to the E & R Grocery where he talked to Farrington, his daughter, and Torrain. While there, he removed a projectile from the television. He then took Miss Farrington to Graham where she viewed the truck which Deputy Sheriff Hargrove had stopped on Pine Street. It was light green. She said that, in her opinion, it was the truck from which the shot had been fired into the store. A photograph of the truck was' introduced in evidence as State’s Exhibit 4, and both Miss Far-rington and Torrain testified that it represented the truck with its rack of pipes or rails, which they described in their testimony.
After talking to Ernestine Farrington on the night of 24 November 1966, Sheriff Stockard warnеd defendant of his constitutional rights and asked him if he wished to make any statement. Defendant said that he did not, and he made none. The next day, the sheriff searched the truck and found in it two pressurized cans of paint. One was on the floorboard of the
About 9:30 p.m. on 24 November 1966, Nellie Mae Foust was at home in the trailer which she occupied with her three small children on Covington Road, a dead-end street off of Highway No. 54. That night she observed two cars and a truck, which was either blue and white or green, go by her trailer and stop in front of the Sarah Foust house next door. The next house beyond Mrs. Sarah Foust’s belongs to Lawrence Williamson. Next to it is a trailer, and the last house at the end of the road belongs to Elmina Wood. None of the dwellings below Nellie Mae Foust’s trailer was occupied on the night of 24 November 1966. When the two cars and truck stopped in front of Sarah Foust’s house, the lights on the vehicles were turned off and, later on, she “heard them shooting.” Three or four shots were fired at the Sarah Foust home.
When the vehicles came out, the truck pulled off to the right as it went by Nellie Mae Foust’s trailer. It did not stop, but a shot was fired at the trailer. The next day, she found a hole in her refrigerator and called Sheriff Stockard. He came and discovered that a bullet had entered the trailer about two feet to the left of the front door and struck the refrigerator.
Sheriff Stockard also examined the Lawrence Williamson home, six to seven hundred yards down the road from the Foust trailer. He found that the letters KKK had been sprayed on the side of the house with white paint. The padlock on the back door had been pried off, and the letters KKK had also been sprayed on a picture hanging on the wall. A sample of the paint used was sent to the laboratory of the State Bureau of Investigation, but its report showed only that the paint used was similar to that found in the truck.
On the right-hand side of the door to the residence of Mrs. Sarah Foust, the sheriff found that the letters KKK had also been sprayed in white paint. To the left of the door, he found approximately five bullet holes. Sixty feet from the front of this house, he found three empty casings for a 30-caliber carbine and an empty casing for a 25-caliber pistol. These casings (State’s Exhibit 3), he sent to the SBI in a sealed envelope. He also removed two projectiles from the rafters in the ceiling. John Boyd, a ballistics specialist in charge of the firearms section of the SBI Criminal Laboratory, test-fired bullets from the 30-caliber carbine and the 25-caliber pistol taken from the truck which defendant was driving on the night of 24 November 1966. He then compared the cartridges which he had fired with the casings contained in State’s Exhibit 3. In his opinion, these casings had been fired from the carbine and the 25-cаliber pistol found in defendant’s truck.
The first count in the indictment in case No. 48 sufficiently charges the misdemeanor of nonfelonious breaking and entering the dwelling house of Lawrence Williamson, which contained personal property (a violation of G.S. 14-54). 2 Strong, N. C. Index 2d, Burglary and Unlawful Breakings § 2 (1967). The second count likewise adequately charges a violation of G.S. 14-144, that is, that defendant et al. did unlawfully and wilfully deface the home of Lawrence Williamson by painting the letters KKK thereon. We are constrained to hold, however, that the evidence is not sufficient to establish the violations alleged. It was sufficient to show that the padlock on the back door of the Williamson house had been broken and the house entered, and that somebody had sprayed paint both on the inside and outside of the house. It does not, however, disclose when these acts were committed or by whom. The finger of suspicion points to defendant аnd his three associates on the night of 24 November 1966, but the evidence does not satisfy the test for circumstantial evidence which was laid down in State v. Stephens,
The evidence pertaining to case No. 49, when considered in the light most favorable to the State — as we are required to consider it in dealing with the motion for nonsuit — is sufficient to establish the following facts: The three empty casings from a 30-caliber carbine and the one from a 25-caliber pistol, which were found 60 feet from the Sarah Foust home, were fired from the carbine and pistol which law-enforcement officers took from defendant’s truck about 10:00 p.m. on 24 November 1966. This truck was light green. The truck which Nellie Mae Foust saw go by her trailer on a dead-end road, and from which shots were fired at the Sarah Foust house, was either light green or blue and white. Shots were also fired at the Nellie Mae Foust trailer from this truck as it went out.
There is no evidence as to which one of the occupants of the truck fired the shots but when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. State v. Peeden,
The purpose of bill No. 50 is to charge the common-law misdemeanor known as going armed with unusual and dangerous weapons to the terror of the people. This offense was incorporated in the statute of 2 Edw. Ill, ch. 3, which provided that any one who appears before the King’s justices or other ministers with force and arms, or brings force “in affray of the peace,” or goes armed by night or day in any fair, market, or elsewhere in such a manner as to terrify the King’s subjects, is guilty of a misdemeanor. 3 Burdick, Law of Crime § 741 (1946). In the report of Sir John Knight’s Case, 87 Eng. Rep. 75, “An information was exhibited against him by the Attorney General, upon the statute of
This Court adopted the views expressed in Sir John’s Case when, in 1843, it decided
From the evidence, it appeared “that the defendant (Huntley) was seen by several witnesses, and on divers occasions, riding upon the public highway, and upon the premises of James H. Ratcliff . . . armed with a double-barreled gun,” and that, on some of those occasions, he was heard to make threats against Ratcliff’s life. The defendant’s motion for a directed verdict of not guilty was overruled. The jury found him guilty and he appealed from the sentence imposed, contending that the offense of going armed with unusual and dangerous weapons to the terror of the people was created by the statute of Northampton, 2 Edw. Ill, ch. 3, and that this statute was not in force in this State. In disposing of this contention, Gaston, J., said:
“. . . We have been accustomed to believe, that the statute referred to did not create this offense, but provided only special penalties and modes of proceeding for its more effectual suppression, and of the correctness of this belief we can see no reason to doubt. All the elementary writers, who give us any information on the subject, concur in this representation, nor is there to be found in them, as far as we are aware of, a dictum or intimation to the contrary. Blackstone states that ‘the offense of riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edward III, ch. 3, upon pain of forfeiture of the arms, and imprisonment during the King’s pleasure.’ 4 Bl. Com. 149. Hawkins, treating of offenses against the public peace under the head of ‘Affrays,’ pointedly remarks, ‘but granting that no bare words in judgment of law carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray, where there is no actual violence, as where a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people, which is said to have been always an offense at common law and strictly prohibited by many statutes.’ Hawk. P. C., B. 1, ch. 28, sec. 1. . . . [I] t is difficult to imagine any (acts) which more unequivocally deserve to be so considered than the acts chargеd upon this defendant. They attack directly that public order and sense of security, which it is one of the first objects of the common law, and ought to be of the law of all regulated societies to preserve inviolate — and they lead almost necessarily to actual violence. Nor can it for a moment be supposed that such acts are less mischievous here or less the proper subjects of legal reprehension, than they were in the country of our ancestors. The bill of rights in this State secures to every man, indeed, the right to ‘bear arms for the defense of the State.’ While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employs those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege with which he has been invested.
* *
A different conclusion from that in State v. Huntley was reached in Simpson v. The State of Tennessee, 5 Yerg. (Tenn.) 356 (1833) wherein it was said that it was no offense at all at common law for a man to go armed in public places with dangerous and unusual weapons when there was no attempt to use them, even though it was alleged to have been done to the terror of the people. In commenting upon the Tennessee case, Clark and Marshall, in their treatise on the Law of Crimes § 428 (5th Ed. 1952), say: “In North Carolina the contrary was held, and this decision (State v. Huntley, supra) seems to be supported both by general principles and by authority.” Accord, 2 Brill, Cyclopedia, Criminal Law § 987 (1923); 3 Wharton’s Criminal Law § 1869 (11th Ed., Kerr, 1912).
State v. Huntley is still the law of North Carolina. During the past 124 years it has never been criticized. In State v. Lanier,
At the time State v. Huntley was decided, the constitutional provision with reference to the right of the people to bear arms was contained in section 17 of the Bill of Rights, which was a part of our Constitution of 1776. It read as follows: “That the people have a right to bear arms for the defence of the state; and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”
Defendant in this case makes no contention that Art. I § 24 of our present Constitution abolished the common-law crime of carrying weapons to the terror of the people or that it protects him from Indictment No. 50. Notwithstanding, we now consider whether this revision in the Constitution changed the common law as it existed in this State in 1843.
It is obvious that the second amendment to the Federal Constitution — “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed” — furnishеd the wording for the first part of the N. C. Constitution, Art. I § 24. Historical data and the reports of the deliberations and discussions which resulted in the wording of the second amendment and similar provisions in the constitutions of the original states lead to the conclusion that the purpose of these declarations (that a well regulated militia is necessary to the security of a free state) was to insure the existence of a state militia as an alternative to a standing army. Such armies were regarded as “ 'peculiarly obnoxious in any free government.’ ” State v. Kerner,
Militia is defined as “[t]he body of citizens in a state, enrolled for discipline as a military force, but not еngaged in actual service except in emergencies, as distinguished from regular troops or a standing army,” Black’s Law Dictionary, 4th Ed. 1951 N. C. Constitution, Art. 12; G.S. 127-1 et seq.; see Worth v. Commissioners,
At the time constitutional provisions guaranteeing to the people the right to bear arms were formulated, the weapons of the militia were largely the private arms of the individual members; so the right of the people to keep and bear arms was the right to maintain an effective militia. If a citizen could be disarmed, he could not function as a militiaman in the organized militia. Today, of course, the State militia (of which the National Guard is the backbone) is armed by the State government and privately owned weapons do not contribute to its effectiveness. While the purpose of the constitutional guaranty of the right to bear arms was to secure a well regulated militia and not an individual’s right to have a weapon in order to exercise his common-lаw right of self-defense, this latter right was assumed. Hill v. State of Georgia,
In State v. Kerner,
In State v. Speller,
In State v. Reams,
North Carolina has not been alone in the view that a citizen’s right to carry arms is subject to reasonable regulation. In 1896, in Commonwealth v. Murphy,
Insofar as they affect an individual’s right to carry arms, we perceive no difference in the constitutional provision of
The right of a citizen to keep and bear arms is not at issue in this case. The question is whether he has a right to bear arms to the terror of the people. Our decisions make it quite clear that any statute, or construction of a common-law rule, which would amount to a destruction of the right to bear arms would be unconstitutional. But, as the Supreme Court of Alabama declared in State v. Reid,
The 1875 addendum to Art. I § 24 does not license self-appointed vigilantes, extremist groups, hoodlums, or any persons whomsoever to arm themselves for the purpose of intimidating the people and then — so long as they flaunt those weapons — to roam with impunity to the terror of the people. The right to keep and bear arms no more gives an individual the right to arm himself in order to prowl the highways or other public places to the terror of the people than the constitutional guaranty of free speech gives him the right to yell “fire” in a crowded theater.
Because our citizens are customarily law abiding, prosecutions for the common-law crime of going armed to the terror of the people have been infrequent. Notwithstanding, it is a wise and salutory law. In this day of social upheaval one can perceive only dimly the tragic consequences to the people if either night riders or daytime demonstrators, fanatically convinced of the righteousness of their cause, could legally arm themselves, mass, go abroad, and display their weapons for the purpose of imposing their will upon the people by terror. Such weapons — unconcealed and “ready to be used on every outbreak of ungovernable passion” — would endanger the whole community. Haile v. State, supra at 566. The wisdom of the common law, which made it a crime to go armed to the terror of the people, inures to our benefit today.
The indictment in case No. 50, although not as detailed and specific as the charge in State v. Huntley, supra, is nevertheless sufficient. Sir John’s Case, supra. See also 3 Wharton’s Criminal Law § 1870 (11th Ed. Kerr 1912). It charges all the essential elements of the crime, that is, that defendant (1) armed himself with unusual and dangerous weapons, to wit, pistols and rifles (2) for the unlawful purpose of terrorizing
The State’s evidence was sufficient to show that defendant and three others collected an arsenal of dangerous weapons, a carbine and four pistols; that, thus armed, they rode the public highways of Alamance County in the nighttime; that, on different streets, they fired bullets into the store of Ernest Farrington and the homes of Nellie Mae Foust and Sarah Foust. As Gaston, J., said of Huntley’s conduct in 1843, it is difficult to imagine facts which “more unequivocally” constitute the common-law misdemeanor of going armed to the terror of the people. Defendant’s motion of nonsuit in case No. 50 was properly overruled.
The decision is this:
As to case No. 48
Reversed.
As to cases Nos. 49 and 50,
No error.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the decisions reached in the majority opinion with reference to Bill No. 48 and with reference to Bill No. 49, and with the views expressed therein concerning those two cases.
I dissent from the decision with reference to Bill No. 50. It is my view that the motion to quash that indictment should have been granted for the reason that the indictment does not state a criminal offense under the present law of this State.
The sufficiency of an indictment to withstand a motion to quash turns upon the facts alleged therein and not upon what the evidence shows. The indictment in Case No. 50 is not strengthened by what is alleged and proved in Cases No. 48 and 49. Upon the motion to quash, it must be considered as if there were no Case No. 48 and no Case No. 49. Upon that motion we look solely to the indictment in Case No. 50 and we assume that every fact allegеd therein is true and that no other fact whatever is known about this defendant. State v. Cole,
The facts alleged in the indictment in Case No. 50 are these:
The defendant and three others “did unlawfully, & wilfully arm themselves with unusual and dangerous weapons, to wit: Pistols and Rifles and, for the wicked and mischievous purpose of terrifying and alarming the citizens of Alamance County, did ride or go about the public highways of Alamance County without lawful excuse armed with said weapons in a manner as would cause terror and annoyance and danger to the citizens of said county.”
The majority construes this to allege that the defendant, armed as described, went upon the public highways in a manner to cause terror to the people. I construe the allegation to mean that he went upon the public highways armed in a manner to cause terror to the people. The difference is not a play upon words. The indictment must charge the elements of the offense “lucidly.” State v. Banks,
In State v. Huntley,
The majority opinion correctly states that the opinion in State v. Huntley has never been criticised during the 124 years since it was rendered by the great Court composed of Ruffin, C.J., and Gas-ton and Daniel, JJ. It is possible that this is true because of the fact that, so far as the reports of this Court’s decisions show, it has never been applied from that day to this. It is true that there are a few scattered instances in which this Court has cited that case as a correct statement of the common law. I have been able to find only these: State v. Cole,
That case, decided by this Court when composed of judges equalled by few and surpassed by none in wisdom or in knowledge of the common law, establishes that in 1843 the common law of North Carolina made it a criminal offense for one armed with “unusual and dangerous weapons” to go upon the public highway and there, by threats of murder, cause terror to the people. Notwithstanding the eminent authority of the Court which so declared the common law of this State in 1843, I question the correctness of a decision which now sends a man to prison on no basis save that it was so declared in the time of Plantagenet absolutism, the dust gathered upon that declaration having been disturbed but once in all the history of this State.
There is, however, a much better reason for refusing to affirm this defendant’s conviction on the ground of State v. Huntley, supra. That is, the fact that the present Constitution of this State contains a different provision as to the right of the people of North Carolina to bear arms from that which the Constitution contained in 1843 At that time the Constitution in effect was the one adopted 18 December 1776. In section 44, that original Constitution of North Carolina incorporated into itself the Declaration of Rights adopted the previous day. Section 17 of the Declaration оf Rights of 1776 declared “that the people have a right to bear arms for the defense of the State * * *.” (Emphasis added.) That provision was quoted
In 1868, our Constitution was rewritten and the language of the Second Amendment to the United States Constitution was substituted for that of the original Constitution relied upon in State v. Huntley. That language is, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed * * (Emphasis added.) Seven years later, in the Convention of 1875, this sentence was added: “Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice.” It appears indisputable that the Convention of 1875 regarded the then established right of the people to keep and bear arms as absolute, so much so that the Legislature could not even forbid the cаrrying of a concealed weapon without the express authority being granted to it in the Constitution by amendment.
It is true that in State v. Speller,
“The Constitution of this State, sec. 24, Art. I, which is entitled, ‘Declaration of Rights,’ provides: ‘The right of the people to keep and bear arms shall not be infringed,’ adding, ‘Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice.’ This exception indicates the extent to which the right of the people to bear arms can be restricted; that is, the Legislature can prohibit the carrying of concealed weapons, but no further.”
If the Legislature of North Carolina today cannot make conduct a criminal offense, it cannot be punished in this State by reason of the fact that Edward II declared it to be so. It was the very fact that the right to bear arms had been infringed in England, and that this is a step frequently taken by a despotic government, which caused the adoption of the provision in the North Carolina Declaration of Rights of 1776 and the insertion in the Federal Bill of Rights of the Second Amendment. When our distinguished predecessors of 1843 determined that the language used in our State Constitution did not forbid the imprisonment of a man for conduct which Edward III had declared a criminal offense, the people of this State wrote into our Constitution the more inclusive language of the Second Amendment to the Constitution of the United States. Thus, State v. Huntley, supra, unless distinguishable from the present case as above suggested, has not been overruled by this Court. It has been overruled by the only authority which is higher than this Court in matters of North Carolina law — the people of North Carolina.
A further quotation from the opinion of Clark, C.J., in State v. Kerner, in which opinion Hoke, J., later C.J., concurred, is not inappropriate to the present times:
“The former [the right to keep and bear arms] is a sacred right, based uponthe experience of the ages in order that the people may be accustomed to bear arms and ready to use them for the protection of their liberties or their country when occasion serves. The provision against carrying them concealed was to prevent assassinations or advantages taken by the lawless, i.e., against the abuse of the privilege. * * *
“In our own State, in 1870, when Kirk’s militia was turned loose and the writ of habeas corpus was suspended, it would have been fatal if our people had been deprived of the right to bear arms, and had been unable to oppose an effective front to the usurpation.
“The maintenance of the right to bear arms is a most essential one to every free people, and should not be whittled down by technical constructions. It should be construed to include all such ‘arms’ as were in common use, and borne by the people when this provision was adopted. * * * The intention was to embrace ‘the arms,’ an acquaintance with whose use was necessary for their protection against the usurpation of illegal power — such as riñes, muskets, shotguns, swords, and pistols. * *- *
“The usual method when a country is overborne by force is to ‘disarm’ the people. It is to prevent the above and similar exercises of arbitrary power that the people in creating this Government ‘of the people, by the people, and for the people,’ reserved to themselves the right to ‘bear arms’ that accustomed to their use they might be ready to meet illegal force with legal force by adequate and just defense of their persons, their property, and their liberties, whenever necessary. We should be slow, indeed, to construe such guarantee into a mere academic expression which has become obsolete.”
When State v. Huntley was decided in 1843, it had never been supposed that the Second Amendment to the United States Constitution placed any limit upon the power of the State Government to declare conduct criminal. See Clark, C.J., in State v. Kerner, supra. There was then no Fourteenth Amendment. The Supreme Court of the United States has now held that the Fourteenth Amendment makes applicable to state governments all of those provisions of the first ten amendments which are essential to the preservation of liberty. See, Palko v. Connecticut,
By no means does it follow that one, while bearing arms, may use them as he sees fit. The right to bear arms obviously confers no right to shoot into the dwelling of another. Thus, the conviction of the defendant in Case No. 49 should be affirmed and I concur in the majority’s decision so to do. Likewise, the State has unquestioned power to punish for an assault with a deadly weapon more severely than for a simple assault, G.S. 14-33, and to impose for аrmed robbery a sentence more severe than that imposed for common law robbery. G.S. 14-87. To stand in a public highway brandishing a pistol while threatening to murder, as was done in State v. Huntley, may be punished by the State. To incite to riot is punishable. State v. Cole,
In the present indictment in Case No. 50, as I interpret it, the defendant is charged only with carrying weapons on the highway, not with any other act. For this reason the indictment does not state a criminal offense and the motion to quash should have been allowed.