State v. Woolman , 84 Utah 23 ( 1934 )

I dissent. I think the offense "unlawful assembly" is included in the offense charged in the information. It is conceded that the offense charged is riot. It further is conceded that at common-law the offenses of "rout" and of "unlawful assembly" were included offenses of "riot." But it is argued that the common-law definition of riot is different from our statutory definition of riot. This chiefly, as is argued, because of the use of the word "assembled" or "assembling" in the common-law definition of riot and the absence of such words in the statutory definition of riot. It is contended that the common-law definition of riot is "a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent; either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner," and that the statutory definition of riot is "any use of force or violence, disturbing the public peace, or any threat to use such force or violence, if accompanied by immediate power of execution, by two or more persons acting together and without authority of law." In the one the word "assembled" is used, in the other not. The common-law definition of riot is variously stated. Blackstone defines it, "where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, as if they beat a man, or hunt and kill game in another's park, chase, warren, or liberty, or do any other unlawful act with force and violence, or even do a lawful act as removing a nuisance in a violent and tumultutous manner."

Bishop (2 Bishop Criminal Law, § 1143) defines a riot to be "such disorderly conduct in three or more assembled persons, actually accomplishing an object, as is calculated to terrify others."

Lord Coke defines it that "riot in the common-law, signifieth when three or more do any unlawful act, as to beat a man or to hurt him in his park, etc., or to enter or take possession of another man's land, or to cut or destroy his corn, grass or other profit." Lord Coke's definition is quoted and approved in the case of People v. O'Loughlin, 3 Utah 133, 1 P. 653.

Other definitions are given that, "where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, or do a lawful act in violent or tumultuous manner." Notes, 54 C.J. 828.

The author there by notes also gives various statutory definitions that "any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot."

Again, "any use of force or violence disturbing the public peace or any threat to use such force and violence, if accompanied by immediate power of execution, by two or more persons acting together and without authority of law, is a riot." That, as is seen, is the definition of our statute.

Again, by other statutes, riot is defined as, "if three or more persons shall assemble together with intent to do any unlawful act with force and violence against the person or property of another, or do any unlawful act against the peace." Again, "the tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object."

In the text, 54 C.J. supra, the author further states that "the modern definition of riot is in harmony with and follows the common law definition. It has no technical import, as distinguished from its signification when used in the everyday affairs of life, and the legal meaning of the word corresponds to the meaning given to it in ordinary usage," etc.

Now, what I gather from all this is that there is no substantial difference between the definitions of riot as defined at common law and as defined by our statute, for that the essential element of riot as defined both at common law and by our statute is a tumultuous disturbance of the peace to the terror of the people by threats or the use of force or violence by three or more persons (under the statute, two or more), acting together without authority of law and with a common purpose and intent. If, under the common-law definition of riot, the offense of unlawful assembly was included, as is conceded it was, I think it also is included in the statutory definition of riot.

I have already stated the statutory definition thereof. Following that, the statute in the next section defining "rout" is, "whenever two or more persons, assembled and acting together, make any attempt or advance towards the commission of an act which would be a riot if actually committed, such assembly is a rout." Following that, the statute defining "unlawful assembly" is, "whenever two or more persons assemble together to do any unlawful act, and separate without doing or advancing toward it, or do a lawful act in a violent, boisterous or tumultuous manner, such assembly is an unlawful assembly." Comp. Laws Utah 1917, tit. 119, c. 38, §§ 8218, 8220, 8221, all related to and under the general head of "Crimes against Public Peace." It is quite apparent that the three offenses, riot, rout, and unlawful assembly, as by the statute defined, are allied and kindred offenses. In speaking of the three offenses, the author in 54 C.J. 829 says:

"Riot, rout, and unlawful assembly are kindred offenses and the greater includes the less; yet the several offenses are clearly distinguishable each from the others. A rout differs from a riot in that the persons do not actually execute their purpose, but only make some motion towards its execution; but what degree of execution of their purpose will convert a rout into a riot may often be difficult to determine. An unlawful assembly differs from a riot in that if the parties assemble in a tumultuous manner, and actually execute their purpose with violence, it is a riot; but if they merely meet upon a purpose, which, if executed, would make them rioters, and, having done nothing, they separate without carrying their purpose into effect, it is an unlawful assembly."

So, here, under the statute, if two or more persons, acting together without authority of law, disturb the peace by the use of force or violence, etc., they are guilty of riot; if assembled and acting together, make an attempt or advance towards the commission of the unlawful act, they are guilty of rout; if assembled together to do an unlawful act, but separate without committing it or advancing towards the commission of it, or do a lawful act in a violent, boisterous, or tumultuous manner, the offenders are guilty of an unlawful assembly. In the first, the unlawful act is committed; in the second, only attempted or an advance made toward it; and, in the third, a separation of the assembled offenders without committing the unlawful act or attempting to commit it or advancing towards it, or where they do a lawful act in a violent, boisterous, or tumultuous manner. I think the three sections of the statute defining riot, rout, and unlawful assembly, the defined minor offenses following the defined greater, and all kindred offenses, should be considered together as degrees of a tumultuous disturbance of the peace.

If an unlawful assembly, the penalty of which is a misdemeanor, is a kindred or lesser offense of riot, the penalty of which is a felony, then language which charges the greater also charges the lesser included offense, just as language charging murder in the first degree also charges all included lesser offenses, second degree murder, and manslaughter, both voluntary and involuntary. Admittedly, the language of the information charges a riot. If the information did not charge riot, then the information would be searched to see whether it charged rout or unlawful assembly, just as, if an information did not sufficiently charge first degree murder, it would be searched to see whether it charged second degree murder or only manslaughter, either voluntary or involuntary. However, if the information is broad enough for the greater offense, it also is broad enough for all included lesser offenses. In such case it is unnecessary to descend to allegations constituting the particular elements of the lesser included offense or offenses. Of course, if no public offense is stated, then nothing is stated, and neither evidence nor verdict can cure the information or add anything to it. So too, if one is convicted of an offense not charged in an information, he is not properly convicted, and the conviction in no sense aided by evidence or verdict. If, however, the offense of unlawful assembly of which the defendant was convicted is a lesser offense included in the greater offense of riot charged in the information, then he was convicted of an offense charged in the information. But there lies the rub. By the prevailing opinion I think it more assumed than demonstrated that the offense of unlawful assembly is not a lesser offense included in the charged greater offense of riot.

The language of the information is that the defendant with about fifteen other named persons, and with divers other persons whose names were unknown, at a stated time and place, "acting together and concertedly" did, without authority of law, willfully, unlawfully and feloniously use and threaten to use force and violence in disturbing the public peace, said threats to use force and violence being then and there accompanied by immediate power of execution, and said persons acting as aforesaid, among other things," willfully, unlawfully, etc., with force and violence obstruct and prevent the sheriff from performing duties of his office, and willfully, unlawfully, etc., beat, bruised and ill-treated peace officers, and with force and violence broke and damaged doors leading into the sheriff's office, and willfully, unlawfully, etc., made great noise, tumult, and disturbance.

Under such information the jury, if the evidence warranted and the jury so convinced, could have found that the defendant with divers persons or some of them, "acting together and concertedly," committed the charged unlawful act or acts. But if the evidence, according to the judgment of the jury, did not justify such a finding, they, if the evidence justified and the jury so convinced, could find that the defendant with divers other persons or some of them, "acting together and concertedly," at the time and place stated, came together or assembled together to commit one or more of the charged unlawful acts, such as to obstruct and prevent the sheriff from performing the charged duties of his office, but separated without committing or attempting to commit such or any of the charged unlawful acts, or advancing towards the commission thereof, or could find that all that the defendant did was that he with divers other persons or some of them, "acting together and concertedly," willfully and unlawfully, and in a violent, boisterous, or tumultuous manner, made a great noise and disturbed the peace, all of which by language is included in the information, and which, as defined by the statute, constitutes an unlawful assembly. The language of the information that the defendant with divers other persons, "acting together and concertedly," willfully and unlawfully, etc., committed the charged unlawful act or acts, reasonably, if not necessarily, implies that they came together, convened, or met together, "assembled together." It is difficult to perceive how the defendant with divers other persons could act together and concertedly, without coming together into one place or company, or as having met or convened together. That is what assembling means. Standard Dictionary.

Lastly, it is argued that no design, intent, or purpose of any unlawful assembly is alleged in the information. The intent and purpose of the defendant with divers other persons, "acting together and concertedly," is rather profusely alleged. That is apparent. In the next place, the language in the information, acting together "and concertedly," implies, to arrange, devise, to plan, to contrive, an agreement together of persons or of movements to a single purpose, arranged or agreed upon in concert or for a common purpose. Standard Dictionary. But to show an unlawful assembly of two or more persons it is not essential that any prior design, intent, or purpose be alleged, or shown either by direct or inferential evidence. Two or more persons, without any wrongful design or intent or purpose whatsoever and with the best motives, with prayer and hymn books in their hands and only for religious worship, may attend church, but if, in the progress of the service, "acting together and concertedly," they in a violent and boisterous or tumultuous manner disturb the peace, they under the statute are guilty of an unlawful assembly. Says the author in 2 Wharton's Criminal Law (12th Ed.) 2189, that: "Persons lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in such a manner as would have made their assembling unlawful if they had assembled in that manner for that purpose; and this has been held to be the case with disorder got up suddenly, though concertedly, at a town meeting, and at a social assembly for dancing." And that is what our statute in effect says defining an unlawful assembly.

I thus am of the opinion that the judgment of the court below should be affirmed.