State v. . Hoffman

BROGDEN, J. A voluminous record and a mass of conflicting testimony present two questions of law: 1. Was there sufficient evidence of a riot as defined by law to be submitted to tbe jury? 2. If so, was there sufficient evidence to be submitted to tbe jury that tbe appealing defendants aided and abetted therein? Tbe offense of riot has been considered by this Court in three cases, to wit: S. v. Stalcup, 23 N. C., 30; Spruill v. Life Ins. Co., 46 N. C., 126; S. v. Hughes, 72 N. C., 25. In tbe Stalcup case a riot was defined “to be a tumultuous disturbance of tbe peace, by three persons or more, assembling together of their own authority, witb an intent mutually to assist one another against all who shall oppose them, and afterwards putting tbe design into execution, in a terrific and violent manner, whether tbe object in question be lawful or otherwise. An indictment for a riot, always avers that tbe defendants unlawfully assembled. And this averment must (we think) be proved on tbe trial, as well as tbe subsequent riotous acts of tbe defendants, before they can be convicted of a riot.” In other words, tbe offense is composed of three necessary and constituent elements, to wit: (a) unlawful assembly; .(b) intent to mutually assist against lawful authority; (c) acts of violence. A perusal of tbe evidence discloses plainly and unequivocably tbe essential ingredients of riot, and hence this phase of tbe case will not be' debated. *333 The second, question of law involves aiding and abetting. Mere presence, even with, the intention of assisting in the commission of a crime, cannot be said to have incited, encouraged, or aided the perpetrator thereof, unless the intention to assist was in some way communicated to him; but if one does something that will incite, encourage, or assist the actual perpetration of a crime, this is sufficient to constitute aiding and abetting. S. v. Hart, 186 N. C., 582, 120 S. E., 345; S. v. Dail, 191 N. C., 234, 131 S. E., 574; S. v. Tyndall, 192 N. C., 559, 135 S. E., 451; S. v. Baldwin, 193 N. C., 566, 137 S. E., 590. In order to apply the well settled principles of law it is necessary to recur briefly to the facts with reference to the participation of each of the appealing defendants in the riot. Alfred Hoffman: This defendant was a recognized mouthpiece of the employees of the mill. He made several speeches to the workmen, and apparently they were depending upon his counsel' and advice. The evidence for the State tended to show that at a meeting about three, weeks before the date of the riot this defendant, in a public utterance, had said, “Don’t let any one move into the Clinchfield mill village. Watch Rutherford County and South Carolina cars especially.” There was further testimony from the State to the effect that at the same meeting over which the defendant Hoffman was presiding, he said: “If anybody gives out anything, they will take a long ride and won’t come back.” Hoffman testified as a witness in his own behalf that one Herling, a newspaper reporter was making some. sort of a speech and that he (Hoffman) sent for the defendant Hogan, “and I told him to go down there and make that damn fellow keep his mouth shut, or something to that effect;' I don’t know just exactly what I said, but my effort was to get him quiet; he was speaking when I got there.” This testimony from the defendant tends to corroborate other evidence offered by the State to the effect that Hoffman was regarded as a leader by the workmen. The sheriff testified that during the riot Hoffman made two or three trips with his car, stopping at a point near the scene of the disturbance, each time bringing a load of people armed with sticks. “When they got out of his car they would go down in the crowd with their sticks.” Another witness for the State testified: “Those folks Hoffman brought there, when they got out of his car, they walked into the crowd and took hand or part in the crowd, hollering, yelling, and cursing like the rest were doing at that time. . . . There was not a thing between Hoffman and the crowd to keep him from seeing what was going on there. . . . I would say, practically all of them in the crowd I saw Hoffman bring up there had sticks.” *334 Hogan: The State offered evidence that Hogan went down to the Marion Mill and requested a man named Bryson who was on the picket line “to get the gang of fighters and go to Clinchfield.” Hogan was present in the crowd that blocked Highway No-. 10. He went from group to group talking to various persons at the time the tumult was in progress. When the troops arrived he declined to move so that the troops could pass until the captain of the military company drew his pistol. Hogan and Hoffman were closely associated in leadership of the workmen. Hoffman lived at Hogan’s house and Hogan “was in charge of the relief and supervised the giving of requisition slips to the strikers.” Hoffman testified: “I have made quite a few speeches around here as an officer of the organization. I depended on Hogan.” Lewis: The sheriff testified: “Del Lewis was right in the crowd helping to .block the highway, kept us from getting back in the house with this stuff through the street. . . . He made all the racket he could.” Deputy Sheriff Hendley testified that Lewis beat upon the truck of the milkman who was trying to pass through the crowd. Lewis also “barked” at the officers. The sheriff said: “Lewis is a big barker.” Fowler: This defendant had an open knife in his hand and was arrested by the sheriff. The foregoing excerpts from the evidence offered by the State warranted the trial judge in submitting the cause to the jury. The defendants, each for himself, denied any and all participation in the riot and offered testimony of many witnesses tending to show that they were present as peacemakers and not as stirrers-up of strife; and furthermore, that the whole tumult resulted from acts of violence committed by the officers upon women who were in the crowd, and that this conduct created the tumultuous scene disclosed by the evidence. However, the evidence in its totality produces a clear-cut issue of fact and under our system of law issues of fact must he determined by a jury. Exception was taken to the introduction of the declaration of Hoffman at a meeting some three weeks before 30 August, 1928, to the effect that cars coming from Rutherford should be watched, and that if anybody told anything “they would take a long ride.” Hoffman denied the making of any such declaration. There is no suggestion that the other defendants approved the declaration. This evidence would certainly be competent against Hoffman in connection with his conduct at the time of the riot in bringing various parties of men to the scene, most of whom were armed with sticks. No error.