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51
S.E.2d 179
(Cite
as: 229 N.C. 734, 51 S.E.2d 179)
Supreme
Court of North Carolina
STATE
v.
MASSEY
et al.
No.
722
Jan.
7, 1949
Appeal
from Superior Court, Durham County; Walter J. Bone, Judge.
Benjamin R. Massey and C. H. Bunn were convicted of endangering
the public health, safety, and welfare by handling poisonous
reptiles in such manner as to constitute a public nuisance
in violation of city ordinance, and they appeal.
Judgments affirmed.
West
Headnotes
Constitutional
Law 84.5(7.1)
92k84.5(7.1)
Most Cited Cases
(Formerly
92k84.5(7), 92k84)
City ordinance prohibiting the handling of poisonous reptiles
in such manner as to endanger the public health, safety,
and welfare is not void on ground that it impinges on the
freedom of religious worship which involves the handling
of poisonous reptiles, since the public safety is superior
to religious practice.
**179 *734 Criminal prosecutions on separate warrants charging
each of the defendants, in identical language and differing
only as to date, with endangering the public health, safety
and welfare by handling poisonous reptiles in such manner
as to constitute a public nuisance in violation of an ordinance
of the City of Durham forbidding such conduct or practice.
Both
defendants were convicted in the Recorder's Court of Durham
Township, and from the judgments pronounced, appealed to
the Superior Court of Durham County, where by consent the
cases were consolidated for trial.
The
facts are not in dispute. On the evenings of November 1
and 8, 1947, several policemen of the City of Durham visited
the Zion Tabernacle Church, situate within the corporate
limits of the City of Durham, and on each occasion found
there a large gathering of men, women and children, engaged
in religious services. During the services they saw the
defendant, C. H. Bunn, on November 1 and the defendant,
Benjamin R. Massey, on November 8, while standing in the
pulpit, take into his bare hands a poisonous snake of the
copperhead or highland moccasin variety and hold it within
view of the congregation. No one was harmed by the snake
on either occasion. The snakes were later tested by placing
healthy *735 rats with them which they immediately struck
with their fangs, and the rats died within a few minutes.
The
defendants concede that their conduct falls within the condemnation
of the ordinance, but they plead not guilty on the ground
that the ordinance impinges on their freedom of religious
worship and is therefore void.
Verdict:
Guilty as charged in each warrant.
Judgments:
Fine of $50 and costs in each case.
The
defendants appeal, assigning errors.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes
J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the
State.
C. H. Bunn and Benjamin R. Massey, in pro. per., defendants-appellants.
STACY, Chief Justice.
The
ordinance inveighs against the handling of venomous and
poisonous reptiles in such manner as to endanger the public
health, safety and welfare, and none other.
The
police are required to seize reptiles handled in an exposed
way and have them examined by the health department. If
found to be venomous they are to be destroyed; otherwise
they are to be returned to the one from whom they were taken.
Manifestly, then, the ordinance was enacted as a protective
measure and its primary purpose is not to interfere with
any ritual which the defendants may wish to observe. They
are at liberty to handle reptiles in public, if they so
desire; provided the reptiles are harmless to human safety,
health and welfare.
The defendants say, however, that the handling of poisonous
reptiles without harm to themselves or others is the power
which they are commanded to show to the people, and to extract
the venom of the reptiles renders them useless for such
purpose. It was suggested on the argument by the defendants
in person that in all probability **180 we would not understand
this. Even so, as a matter of law the case comes to a very
simple question: Which is superior, the public safety or
the defendants' religious practice? The authorities are
at one in holding that the safety of the public comes first.
Kirk v. Com. of Virginia, 186 Va. 839, 44 S.E.2d 409; Lawson
v. Com. of Kentucky, 291 Ky. 437, 164 S.E.2d 972; Reynolds
v. United States, 98 U.S. 145, 163, 25 L.Ed. 244; Late Corporation
of the Church of Jesus Christ of Latter-Day Saints v. United
States, 136 U.S. 1, 49, 10 S.Ct. 792, 34 L.Ed. 478.
No detailed analysis of the ordinance is required since
the defendants concede that unless it impinge on their freedom
of religious worship, they are in defiance of its terms.
The
record is devoid of any reversible error, hence the verdicts
and judgments will be upheld.
No error.
N.C.
1949
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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