Lynch v. State

Andersost, J., delivered the opinion of the Court. Appellants, Charles Conley Lynch, Joseph Carroll and Richard Berry Norton, were tried in the Criminal Court of Baltimore by a jury, Judge J. Gilbert Prendergast presiding, under two indictments. Indictment Number 3700 charged the defendants in count one with inciting a riot, in count two with riot, in count three with using profanity on a public street, in count four with disorderly conduct in a public resort, and in count five with violation of Rule Number One of the Park Rules of Baltimore City (disorderly conduct in the park). Indictment Number 3703 charged the defendants with conspiring to incite a riot in count one, and conspiring with other persons unknown to riot in count two.

Appellants were convicted under the first, fourth and fifth counts of Indictment Number 3700, and under the first count of Indictment Number 3703. Motions for new trials were denied, and appellants Lynch and Norton under the first count of Number 3700 and the first count of Number 3703 each was given concurrent sentences of two years in the House of Correction and, in addition, a fine of one thousand dollars ($1,-000.00). Under counts four and five of Indictment Number 3700’, Lynch and Norton each was given concurrent sentences of thirty days in the House of Correction and a fine of fifty dollars ($50.00), also to run concurrently with the other sentences. Lynch and Norton, therefore, were given a total of two years in the House of Correction and, in addition, a fine of one thousand dollars ($1,000.00) each.

Appellant Carroll under the first counts of Indictments Number 3700 and 3703 was given concurrent sentences of not more than two years in the Maryland Correctional Institution and ⁵⁵⁰ no fine. Under counts four and five of Indictment Number 3700 he was given sentences of thirty days each, to run concurrently with the sentences previously imposed under the first counts of Indictment Numbers 3700 and 3703 and a fine of fifty dollars ($50.00), which was suspended. The indictments arose out of a series of three public meetings in Patterson Park, in Baltimore City, that were held on the 25th, 27th and 28th of July, 1966. The three appellants participated in the rallies held by The National States Rights Party in Patterson Park on the three evenings in question, although the permits were issued for “The Citizens of Brailsford Committee” to conduct political rallies in Patterson Park on those dates.

At no time was the Park Superintendent advised that the National States Rights Party desired to hold rallies in Patterson Park, nor was there any evidence that the citizens for Brailsford Committee participated in any of the rallies actually held, nor was Brailsford’s name ever mentioned. Moreover, each of the speakers, and the literature disseminated on these occasions, referred only to The National States Rights Party as the sponsoring organization. Each of the appellants spoke on the evenings of July 25th, July 27th and July 28th, 1966. Their speeches were given over a voice amplified system which was wired to a sound truck.

Throughout the course of the rallies on the nights in question their speeches were laced with offensive epithets directed towards Negroes, Jews and certain political institutions and officeholders. Some of the remarks made during the course of the rallies were as follows: On July 25th, Joseph Carroll said: “The time has come for all white youths to unite and fight for white power. Let’s smash this nigger revolution here and now.” * * * “I guarantee you we are the loudest bunch of hate mongers in the entire State.” * * * “Are we going to let these vile black beasts to run wild, pillage, rape our white people? The time has •come for us to fight and that is exactly what we are going to do.

How about you?” ⁵⁵¹ Richard Berry Norton was the second speaker. Among other things, he said: “Connie Lynch on the subject of violence is a moderate. I know he is a moderate. Connie Lynch personally told me he favors just enough moderate violence to get the niggers the hell out of America.” The final speaker was Charles Conley Lynch who repeated epithets directed against the Negro and Jewish minorities, the Federal Bureau of Investigation, governmental leaders and the United States Supreme Court.

Among other things, he said: “Let me tell you, let me remind all of you niggers and you nigger lovers, whatever you be, whether you be politicians and what have you, you’re just beginning to see and hear a little bit of what you’re going to see and hear in the very near future — and you can be sure of that. Niggers are going to be hanged. More than ever been hanged before in any country or in any nation in all the world.” Later, he said: “Certainly I believe in violence.” * * * “Anybody ask you to believe in non-violence to defend what you believe is right you tell him ‘Hell, yes you believe in violence’. * * * How you folk feel about it?” * * * “We are going to kill all the niggers if it takes that to keep us white. How do you folks feel about that ?” On the 27th, each speaker repeated the themes advanced on the 25th.

Joseph Carroll said: “Most of these nigger lovers are sick in the mind. * * * they should be bound, hung and killed.” “* * * if they want violence we’ll give it to them. White man, that is the time to get your gun and kill your share of niggers * * * we’ll never, never have any racial peace and there can be no peace until the nigger hangs from every lamppost.” “White man fight.” ⁵⁵² Richard Berry Norton said: “I know when they [C.O.R.E.] open up you white folks are going to beat the hell out of them.” Charles Conley Lynch said: “Rise up and unite white man and fight.” At the meeting on July 28th, Joseph Carroll said: “The white people aren’t going to tolerate any more of this, they are going to riot. There is only one way.” * * * “I want you to watch me. Raise your right fist and shake it.

White man, fight.” Richard Berry Norton said: “Are you ready to fight?” Charles Conley Lynch said: “I know you are enthused with fight.” The above excerpts are only a small portion of what was said, and the appellants’ speeches on each of the three evenings were so inflammatory, insulting and offensive as to have a direct tendency to cause acts of violence by those listening. Each evening the crowd grew in numbers, and on July 28th, by some estimates, reached as many as three thousand. Fearing serious trouble, Mr. Myerly, the Park Commissioner, on July 28th cancelled the permit because of violations of Park rules committed on the two previous nights. However, the appellants parked their sound truck adjacent to Patterson Park on the evening of July 28th and each of the apellants delivered speeches consisting of a repetition of those given on the two previous evenings.

During the course of the three evenings involved, there were a number of incidents. Because of the temperament of the crowd, it was necessary for the police to assist members of C.O.R.E. and a group called Sparticus away from the scene of the meetings. On the evening of the 28th, part of the crowd listening to the speeches, having been incited by them, began chasing two Negro boys who were merely passing through the park. ⁵⁵³ Also, on the evening of the 28th, an incident took place in the 200 block of Montford Avenue about two blocks north of Baltimore Street and one block from where Luzerne Street meets Patterson Park. Another incident on the 28th took place near the swimming pool and basketball courts in Patterson Park.

This involved a number of people who had been at the rally and had run in that direction. Still another incident involved one Dennis Alexander, a 16 year old Negro youth, who was walking his dog near Patterson Park. He was beaten by a group of white boys and a rope put around his neck. The boys, who inflicted the beating, came from Patterson Park.

At each of the rallies tape recordings of the speeches were made. These tapes were admitted into evidence and were played for the court and jury. Also, photographs were taken on the evenings of the rallies in and near Patterson Park and were admitted into evidence. In addition, moving pictures, taken by a television newsman, were admitted in evidence.

I Appellants first contend that the court committed reversible error in permitting the State to introduce State’s Exhibits Numbers 7A, 7B and 7C, same being the tape recordings of appellants’ meetings on the 25th, 27th and 28th of July, 1966. Their sole argument as to this contention is that the tape recordings were too garbled to corroborate the testimony of any of the State’s witnesses or give the jury a true report of what appellants said at the three meetings. We find no merit in this contention. The quality of the reproduction of the tape recordings would go to the weight of the evidence rather than its admissibility.

While it is true that certain parts of the recordings were inaudible, the greater portion was readily intelligible and would be admissible. A witness may testify as to so much of a conversation as he overhears notwithstanding the fact that other parts were inaudible. See Annotation, 58 A.L.R. 2d 1024 , 1038. See also United States v. Schanerman, 150 F. 2d 941 (3 Cir. 1945).

II Appellants’ second, third and fourth contentions may be considered together. In essence they contend that the court erred in admitting into evidence certain testimony, photographs and ⁵⁵⁴ motion picture film of events which did not occur at the precise location where appellants were speaking, and that they involved incidents that took place out of sight of the appellants and away from where they were actually speaking. It is clear from the testimony that all of the incidents involved occurred shortly after the time that appellants were speaking and within a few blocks of where they were speaking. Such evidence would be as much a part of the res gestae as what occurred in the actual presence of the appellants.

Cohen v. State, 173 Md. 216 , 195 A. 532 , cert. den. 303 U. S. 660 (1937), involved charges against a union organizer of inciting a riot and for riot. The dispute involved in that case lasted several weeks, and the meetings and other incidents which allegedly constituted the criminal acts of inciting to riot took place on a number of occasions and in a number of different locations. Testimony was admitted of certain incidents where the appellant was not present at all. The Court held that such testimony was clearly within the res gestae- and was properly admitted into evidence on the grounds that the disorders had been incited, encouraged, aided and abetted by him.

See also Wilson v. State, 181 Md. 1, 3, 4 , 26 A. 2d 770 (1942) and Stevens v. State, 232 Md. 33, 40 , 192 A. 2d 73 , cert. den. 375 U. S. 886 (1962). Here, the testimony, photographs and motion pictures involved events in which individuals who were at the meetings at which appellants spoke and who were coming directly from such meetings were participants and are part of the res gestae. Ill Appellants’ fifth, sixth, eighth, ninth and tenth contentions, will be considered together. These contentions, in substance, allege that the charges brought against the appellants infringe upon their constitutional right of free speech.

This contention is. the real thrust of appellants’ appeal. Appellants argue that the court, by refusing to grant appellants’ motions for judgments-of acquittal at the close of all the evidence, deprived them of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution, since they were only exercising their constitutional rights under the Fourteenth and First Amendments to the Constitution when they spoke at their three ⁵⁵⁵ rallies in Patterson Park in Baltimore on the 25th, 27th and 28th of July, 1966, citing Thornhill v. Alabama, 310 U. S. 88 , 84 L. Ed. 1093 , 60 S. Ct. 736 . In Thornhill v. Alabama, supra, the United States Supreme Court held that an Alabama statute which made loitering and picketing forbidden was invalid on its face as violative of freedom of speech and of the press since the State courts, among other things, construed the statute as forbidding the publicizing of the facts concerning a labor dispute whether by printed sign, by pamphlet, by word of mouth or otherwise in the vicinity of the business involved. There the Court said: “The freedom of speech and of the press guaranteed by the Constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” In its finding, the Court held that freedom of speech and of the press secured by the First Amendment against abridgment by the United States is secured to all persons by the Fourteenth Amendment against abridgment by the States.

Here, however, the facts are not like those in Thornhill v. Alabama, supra. The speeches of the appellants contained language and epithets of such a nature as to incite their audience to riot and, were composed of derisive and fighting words which carried their remarks outside of the constitutional guarantees. Their speeches were calculated to cause the interracial disorders which resulted therefrom and were therefore not within the guarantees of free speech. In Chaplinsky v. New Hampshire, 315 U. S. 568 , 86 L. Ed. 1031 , 62 S. Ct. 766 , Chaplinsky was convicted under a State law denouncing the use of offensive words when addressed by one person to another in a public place. 1 Chaplinsky, a mem ⁵⁵⁶ ber of the sect known as Jehovah’s Witnesses, was distributing the literature of his sect on the streets of Rochester on a busy afternoon.

Members of the local citizenry complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a “racket.” Bowering told them that Chaplinsky was lawfully engaged and then warned Chaplinsky that the crowd was getting restless. Sometime later, a disturbance occurred and a traffic officer started with Chaplinsky for the police station, but had not placed him under arrest. On the way, they met Marshal Bowering, who had been advised that a riot was under way and was hurrying to the scene. Bowering repeated his earlier warnings to Chaplinsky, who then said to Bowering: “You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Following his conviction and affirmance by the Supreme Court of the State, his case reached the Supreme Court of the United States on appeal.

In affirming his conviction, the Supreme Court held that a State could punish as a breach of the peace use of epithets such as “damned racketeer” and “damned fascists” addressed to persons or groups, because such epithets are likely to provoke the average person to retaliation. In pointing out that under the broadest scope of the language and purpose of the Fourteenth Amendment the right of free speech is not absolute at all times, the Court in its opinion said: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” While the Supreme Court of the United States has in nu ⁵⁵⁷ merous decisions made clear that freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties, which are protected by the Fourteenth Amendment from invasion by State action, it has been careful to note that there are limits to the exercise of these liberties.

In Cantwell v. Connecticut, 310 U. S. 296 , 84 L. Ed. 1213 , 60 S. Ct. 900 , where the defendant’s conviction of the common law offense of breach of the peace was held to be violative of the Constitutional guarantees of religion, liberty and free speech under the First Amendment as embodied in the Fourteenth Amendment, the Court in its opinion took occasion to point out that the offense