Commonwealth v. Frishman

Crosby, J. These complaints in the second counts charge that the defendants on May 1, 1919, “did unlawfully, riotously and tumultuously assemble with thirty or more persons, and while so unlawfully assembled as aforesaid, with a certain weapon dangerous to life, to wit, a knife, did . . . wound . . . one Samuel C. Hutchins, a police officer of said city of Boston, lawfully engaged in dispersing and suppressing said unlawful assembly. . . .” The — 453 — allegations in the second counts fully and sufficiently charge the defendants with the common law offence of a riot. Commonwealth v. Runnels, 10 Mass. 518. Commonwealth v. Gibney, 2 Allen, 150. Train & Heard’s Prec. of Indictments & Special Pleas, 456. 3 Bish. New Crim. Proc. § 992 (2). On May 1, 1919, a meeting of Socialists was held in the Dudley Street Opera House in Boston. The record recites that it was an orderly meeting held for a lawful purpose; that it was largely attended, both sexes and various nationalities being present; that there was music, and speaking from the platform; that the meeting adjourned to International Hall, so called, which was more than a mile distant from the opera house; that those at the meeting and others went from the opera house up Warren Street on the way to International Hall; that up to that time there were about fifteen hundred men and women and some children present; that nearly all wore some article of red and a large number of red flags were carried, on some of which were printed words in a foreign language; that as the crowd went up Warren Street there was singing in one or more-foreign languages; that no American flag was carried; that from various parts in this body there were shouts, singing, and loud cries of “Down with the Millionaires! Kill the Cops! To Hell with the Police! Hurrah Bolsheviki! To Hell with the American Flag.” From this evidence it is plain that the jury were warranted in finding that the crowd of men and women walking along Warren Street constituted a “procession or parade” and that the persons so participating were “marching” on a public street as those words are used in a regulation of the board of street commissioners of the city of Boston, which regulation was in force on that day and provided that “No procession or parade, containing two hundred or more persons . . . shall . . . march on any public street of the city except in accordance with permit issued by the board of street commissioners.” St. 1854, c. 448, § 35. St. 1908, c. 447. No permit had been issued to this body. There was further evidence that when the crowd reached the corner of Warren and Copeland streets, police officer Wiseman stood in front of the advancing crowd and asked the man in front leading the parade if he had a permit, “and a fellow standing right in behind him said, ‘No, to Hell with the permit; ’” that — 454 — the officer said “Don’t you know you ain’t allowed to parade the streets without the American flag?” and he said “To hell with the American flag and the cops too.” The officer testified that thereupon he was wheeled around, jostled, and some one tried to trip him, and the crowd kept right on past him. There was also evidence tending to show that threats were made to police officers; that soon after a patrol wagon containing six or seven officers in charge of Sergeant Casey came up; the men jumped out of the wagon and formed a line across Warren Street in front of the paraders and Casey asked the man who appeared to be a leader if he had a permit; that none was produced; that he thereafter commanded the crowd to disperse; that the crowd surged forward and forcibly assaulted the policemen, who drew their clubs and pushed back the crowd; that the latter did not separate, but went down Bower Street and threw stones and other missiles at the officers; that two shots were fired in the direction of the police; that shots were fired by both the policemen and the paraders; that one of the officers was mortally wounded, and Samuel C. Hutchins, another officer, was struck by one of the paraders with a flagstaff and was stabbed and permanently injured; that many persons were hit by blows from clubs, missiles and shots coming from the paraders. There was evidence that Hutchins was ordered by Casey to arrest the men with the flags, “it being Sergeant Casey’s object in giving this order to thereby have under arrest the men who were leading in the parade;” that Hutchins went through the crowd to arrest one of the men with a flag “five or six rows back;” that while struggling with this man for possession of the flag he was assaulted by the paraders and struck from behind and also struck across the head and shoulder with a flagstaff, and was stabbed but did not know that he had been stabbed until afterwards. The parade being in violation of the regulations was unlawful. There was evidence from which it could have been found that all these defendants were in the parade and formed a part thereof. Without reciting in detail the evidence relating to the acts of each defendant, it is plain that all could have been found to have participated in a common purpose by force and violence to march and parade on a public street without permission and in violation of law, and with such a finding they could have been found guilty — 455 — of a riot. If the defendants were acting in concert with the others for the accomplishment of a common unlawful purpose, it is not necessary to constitute a riot that all should commit some physical act, it is enough if they were present, aiding and abetting by their presence. State v. Straw, 33 Maine, 554. State v. Snow, 18 Maine, 346. If, as the jury could have found, the defendants were present consenting to the unlawful acts, and in a position where they might render aid and assistance, they are guilty as principals. Commonwealth v. Knapp, 9 Pick. 495, 518. Clifford v. Brandon, 2 Camp. 358, 370. It follows that the first and fourth requests were rightly refused. The second request for a ruling that “There is no evidence to justify a finding that officer Hutchins was stabbed with a knife,” could not properly have been given. While there" was evidence that the officer was stabbed, there was no direct evidence that the weapon used was a knife. It would not seem to be an unwarrantable inference that a stab wound was caused by a knife; however that may be, the offence charged is a riot, a specific offence; the allegation of the assault is merely incidental to and a part of the charge of a riot, but it was not an essential part of that offence. It was not necessary to convict of a riot to show that the officer was stabbed by one of the paraders with a knife, or that he was stabbed at all. R. L. c. 218, §§ 21, 34, 35. Commonwealth v. Hunt, 4 Pick. 252. Commonwealth v. Randall, 4 Gray, 36. Commonwealth v. Hall, 142 Mass. 454. State v. Russell, 45 N. H. 83, 86. See cases collected in 18 Encyc. of Pl. & Pr. 1204. The decision in Commonwealth v. McCarthy, 145 Mass. 575, is not at variance with the conclusion reached. It was not necessary to a conviction to prove that the persons who took part in the parade were commanded to disperse by any of the officials named in R. L. c. 211, § 1. The offence charged, being a riot at common law, exists wholly independent of the statute. State v. Russell, supra. Accordingly the sixth request was rightly refused.- The presiding judge accurately instructed the jury upon the issues of law presented, and, as the rights of the defendants seem to have been fully protected, the entry must be Exceptions overruled.