State v. Dorsett

164 S.E.2d 607 (1968)

3 N.C. App. 331

STATE of North Carolina v. George F. DORSETT. STATE of North Carolina v. Larry Franklin DORSETT.

No. 6818SC455.

Court of Appeals of North Carolina.

December 31, 1968.

*609 T. W. Burton, Atty. Gen., by William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Staff Atty., Raleigh, for the State.

Jordan, Wright, Nichols, Caffrey & Hill, by Luke Wright, Greensboro, for defendants.

BROCK, Judge.

Defendants assign as error that the trial judge ruled the Ordinance to be constitutional and denied the motions to quash the warrants.

A statute or ordinance is presumed to have meaning and will be upheld if its meaning is ascertainable with reasonable certainty by proper construction. Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1. If a statute is susceptible to two interpretations, one constitutional and the other unconstitutional, the former will be adopted. State of North Carolina Milk Commission v. National Food Stores, Inc., 270 N.C. 323, 154 S.E.2d 548. The ordinance attacked in this case is clearly criminal in nature and is subject to the rule of strict construction, nevertheless the courts must construe it with regard to the evil which it is intended to suppress. State v. Brown, 221 N.C. 301, 20 S.E.2d 286. Also, the rule that statutes will be construed to effectuate the legislative intent applies to criminal statutes. State v. Humphries, 210 N.C. 406, 186 S.E. 473.

*610 The defendants complain that the use of the words loud or unnecessary in the ordinance renders it vague and indefinite. They contend that these words do not meet the test of reasonableness because an average man cannot understand at what point he would incur the penalty of the ordinance. Similar arguments were advanced in Smith v. Peterson, 131 Cal. App. 2d 241, 280 P.2d 522, 49 A.L.R.2d 1194; and Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513, 10 A.L.R.2d 608. In Kovacs an ordinance of the City of Trenton, New Jersey, which forbade loud and raucous noises from loud speakers or amplifiers attached to vehicles was attacked as vague, obscure and indefinite. The court stated that this argument "merits only a passing reference." It stated further: "While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden." In Smith a statute requiring that vehicles be equipped with mufflers to prevent any excessive or unusual noise was attacked as uncertain, indefinite and vague. The court held that when viewed in the context in which they are used in the statute, the words excessive or unusual are sufficiently certain to inform persons of ordinary intelligence of the nature of the offense which is prohibited.

The protection of the well-being and tranquility of a community by the reasonable prevention of disturbing noises are within the city's power to control nuisances. G.S. § 160-200; Kovacs v. Cooper, supra. The ordinance in question does not define in decibels the intensity of the noise to be prohibited thereby, but such exactness is not required. State v. Dorsett, and State v. Yow, 272 N.C. 227, 158 S.E.2d 15. "A criminal statute is not rendered unconstitutional by the fact that its application may be uncertain in exceptional cases, nor by the fact that the definition of the crime contains an element of degree as to which estimates might differ, or as to which a jury's estimate might differ from defendant's, so long as the general area of conduct against which the statute is directed is made plain. It is not violative of due process of law for a legislature in framing its criminal law to cast upon the public the duty of care and even of caution, provided there is sufficient warning to one bent on obedience that he comes near the proscribed area. Nor is it unfair to require that one who goes perilously close to an area of proscribed conduct take the risk that he may cross the line." 21 Am.Jur.2d, Criminal Law, § 17, p. 100.

The defendants in this case, and others operating motorcycles, are not placed at their peril by the ordinance. The words loud or unnecessary have a commonly accepted meaning and they give sufficient warning to anyone who has the desire to obey the ordinance. It may, be as suggested by the defendants, that their motorcycles operated singly did not make a loud or unnecessary noise, and that it was only when operated in a group that the noise was amplified. The purpose of the ordinance is to prevent loud or unnecessary noise, and if the defendants voluntarily joined with others to create such loud or unnecessary noise, it would be no less a violation of the ordinance. They cannot do with impunity as a group the very thing that they cannot do individually.

In our opinion, and we so hold, the ordinance in question is not unconstitutional for vagueness or indefiniteness, and the trial judge was correct in refusing to quash the warrants. Defendants' first assignment of error is overruled.

Defendants' assignments of error numbers two and three can be disposed of as one. They contend that evidence of noise from the group of motorcycles, not identified specifically as coming from their motorcycles, was inadmissible as against them; and that their motion for nonsuit should have been allowed because of the lack of evidence of noise from their individual motorcycles. These assignments of error are without merit.

*611 The defendants voluntarily engaged with a group in operating motorcycles up and down and near Trogdon Street. Defendants are in no position to complain that the intensity of the noise from the group was allowed in evidence. It was competent for the prosecution to show the intensity of the group noise without having to show the decibels contributed by each defendant. Having joined in the violation of the ordinance as a group, defendants cannot now be heard to complain that their conduct standing alone would not have constituted a violation. If the contribution of each made the total into an offense condemned by the ordinance, then each would be guilty of the offense.

No error.

BRITT and PARKER, JJ., concur.