596 F2d 1205 Radford v. A a Webb

596 F.2d 1205

V. M. RADFORD, Appellee,
Honorable A. A. WEBB, Judge of the General Court of Justice
of Union County, North Carolina, District Court
Division, Appellant.

No. 78-6148.

United States Court of Appeals,
Fourth Circuit.

Argued April 6, 1979.
Decided April 25, 1979.

Marvin Schiller, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N. C., on brief), for appellant.

George S. Daly, Jr., Charlotte, N. C. (Hugh G. Casey, Jr., Charlotte, N. C., on brief), for appellee.

Before WINTER, BUTZNER and RUSSELL, Circuit Judges.


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After consideration of the record and the arguments of the parties, both oral and written, we think that the district court correctly granted a writ of habeas corpus. The district court held that §§ 14-196(a)(1) and (2), N.C.Gen.Stat. (1969), under which petitioner was convicted, violated the first amendment to the Constitution of the United States and were therefore invalid. These statutes proscribe profane, vulgar, lewd and threatening communications over the telephone. As we view the record, particularly the term of his probation, we think that petitioner was convicted only under § 14-196(a)(1); and as to it we affirm on the district court's memorandum opinion of May 25, 1977, and its order of February 20, 1978. See Radford v. Webb, 446 F.Supp. 608 (W.D.N.C.1978).