Some of my recent posts have addressed weapon offenses at demonstrations and other public events, and I also wrote recently about the issue of dicta in a court opinion being treated as binding precedent. Those two topics converged in an interesting way during a training seminar yesterday for magistrates.
We were discussing one of the most well-known offenses in this area, Going Armed to Terror of the People, when this question came up: is it really limited to offenses that occur “on a public highway,” or can it apply in other public places like parks, bus stations, and government buildings? If not, why not? Especially since other breach of the peace offenses like affray or disorderly conduct apply more broadly to any “public place?”
Charging practices seem to differ on this point around the state, and there is some room for debate depending on how far back we go in the case law, so I thought it warranted a closer look.
The Elements of the Offense
If you need a refresher on this offense, Professor Smith’s helpful summary is available here. Going armed to the terror of the people is a common law offense, meaning it’s established and defined by the cases interpreting it. Case law on this offense is pretty limited, but the more modern cases (relatively speaking) that we do have identify the “four essential elements to charge the common law offense of intentionally going about armed with an unusual and dangerous weapon to the terror of the people” as follows:
(1) armed with unusual and dangerous weapons, (2) for the unlawful purpose of terrorizing the people of the named county, (3) by going about the public highways of the county, (4) in a manner to cause terror to the people.
State v. Staten, 32 N.C. App. 495 (1977) (emphasis added); accord, State v. Toler, 716 S.E.2d 875 (N.C. App. 2011) (unpublished). So there it is in black and white: “going about the public highways” is a necessary element.
Little surprise, then, that we see the highway element included as a requirement in reference materials addressing the offense, such as Arrest Warrant and Indictment Forms (“while thus armed the defendant went about the public highways of that county in a manner to cause terror to the people”), North Carolina Crimes (listing the third element as “goes about on public highways”), or Pattern Jury Instruction 235.20 (elements the state must prove include “that, thus armed, he went about the public highways” of the town or county).
Not much of a blog post so far…. What’s the issue?
The Origin of the Highway Element
Modern cases like Staten and Toler generally cite to State v. Dawson, 272 N.C. 535 (1968) as the leading authority on the elements of this offense. In Dawson, the court held that the state’s indictment sufficiently “charge[d] all the essential elements of the crime,” including that “thus armed, he went about the public highways of the county,” and further held that the evidence was sufficient to prove that defendant committed the offense when he 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; [and] that, on different streets, they fired bullets” into a store and homes. Id. at 549.
Here, at last, we reach the question regarding the public highway requirement: did Dawson really say that being on a highway is a necessary element, or was that part of the decision just nonbinding dicta? In other words, why is the “public highway” term treated as an essential element, but references to other details like possessing a carbine, being in Alamance County, or acting in the nighttime are not? Is it possible that we are misreading Dawson, and its reference to being on a public highway was simply explaining why the indictment and evidence in that particular case satisfied the traditional element of occurring in a “public place,” rather than proclaiming a new and specific essential element for all subsequent prosecutions?
Out On a Limb, But With Some Support
Most contemporary authorities now list being on a public highway as an essential element, so I admit that it’s swimming upstream to try to argue otherwise — but the issue is not entirely settled. For example, Pattern Jury Instruction 235.20 includes going “about the public highways” as an essential element of the offense, but it also contains this interesting footnote: “State v. Dawson […] said that being on a public highway was an essential element. This may have been dictum to the extent that being in a public place may be sufficient.”
There is a solid basis for that observation. The primary case that Dawson relied on as authority was State v. Huntley, 25 N.C. 418 (1848). Dawson interpreted Huntley as adopting the English common law rule found in Sir John Knight’s Case, 87 Eng.Rep. 75, “which provided that any one who […] 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.” (emphasis added).
Huntley was also cited by State v. Lanier, 71 N.C. 288 (1874), a case that involved a charge of riding a horse (unarmed) through a courthouse at night. Although Lanier ultimately found it was error for the judge not to let the jury decide the case, the court began by noting that the underlying facts would apparently bring it within the scope of the offense:
[T]he offence of going armed with dangerous or unusual weapons is a crime against the public peace by terrifying the good people of the land, and this Court has declared the same to be the common law in [Huntley]. […W]e think it may be conceded that the driving or riding without arms through a court house or a crowded street at such a rate or in such a manner as to endanger the safety of the inhabitants amounts to a breach of the peace and is an indictable offence at common law.
71 N.C. at 289-90.
Taken together, these historical cases indicate that the offense of going armed to the terror of the people unquestionably could occur on a public highway, since that is one example of being in a public place, but it could just as easily occur in other public places like markets, fairs, courthouses, “or elsewhere.” And as noted in the introduction, this broader interpretation is more in line with other offenses that involve a similar breach of the peace and can occur in any public place. See, e.g., G.S. 14-288.1(8) (“public place” for disorderly conduct offenses “shall include, but not be limited to, highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood”).
So You’re Saying We Should Start Charging This?
No, I’m only saying that based on the historical case law, it appears that in moving from our state’s Supreme Court decision in Dawson in 1968 to the Court of Appeals decision in Staten in 1977, what was intended as an illustrative example may have been mistakenly elevated to a formal element. And based on the questions I’ve received from prosecutors and magistrates, there seems to be some lingering disagreement out there about which interpretation is correct.
But whenever this question comes up, my usual advice is to only charge the offense in circumstances where it actually occurred on a public highway, precisely because it is a common law offense. The crime is defined and shaped by the cases interpreting it, and the more recent cases like Staten and Toler have, correctly or not, adopted the “public highway” requirement as an essential element. Unless and until we have a newer appellate case revisiting the issue, the defendant could argue that this is the current version of the law for which he was on notice, and it is an element that the state has to prove beyond a reasonable doubt. In cases that occur off the highway, the state might want to consider another applicable offense such as assault by pointing a gun or communicating threats.
If you’re a prosecution-minded reader and this conclusion rankles you, let me offer a consolation prize. The fluid nature of the common law may have limited the scope of the offense in some ways, but it has been a benefit to the state in others. Just imagine the difficulty of trying to prove that the defendant’s actions caused terror “to the King’s subjects.”