Opinion
SC 464.
August 30, 1973.
Certiorari to Court of Criminal Appeals.
Drake, Knowles Still, University, for petitioner.
William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Special Asst. Atty. Gen., for the State, respondent.
Petition of Robert Johnson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Johnson v. State, 50 Ala. App. 726, 282 So.2d 345.
Writ denied.
MERRILL, COLEMAN, HARWOOD, MADDOX and FAULKNER, JJ., concur.
HEFLIN, C. J., and JONES, J., dissent.
The petitioner-appellant-defendant Robert Johnson contends that the opinion of the Court of Criminal Appeals is in error for the following reasons:
1. There was no legal evidence of conduct by the defendant prohibited by Title 14, Section 119(1), Code of Alabama, 1940, as amended, (1971 Cumulative Pocket Part to Recompiled Code of 1958) (Breach of Peace Statute).
2. There was a fatal variance between the offense charged and the proof thereof.
3. The conduct of the defendant on the occasion is constitutionally protected by the "due process of law clause."
4. The defendant's conduct was protected by "free-speech and assembly" provisions of the First Amendment to the United States Constitution.
The defendant contends that the "due process of law" and the "free-speech and assembly" defenses were raised and argued before the Court of Criminal Appeals but that the Court of Criminal Appeals did not mention these constitutional issues in its opinion. An inspection of the briefs filed in the Court of Criminal Appeals reveals that such issues were raised and argued to that court both on original submission and on rehearing.
The present posture of the case before this court is on preliminary consideration of the petition for certiorari. I feel the parties should have an opportunity to argue the issues orally before this court, therefore, I would grant the writ.
JONES, J., concurs.