Bonnville v. State
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | ORTON |
| Citation | 11 N.W. 427,53 Wis. 680 |
| Decision Date | 10 January 1882 |
| Parties | BONNVILLE AND OTHERS v. STATE OF WISCONSIN. |
OPINION TEXT STARTS HERE
Error to circuit court, Taylor county.
Jones & Sanborn and E. L. Brown, for plaintiffs.
Attorney General, for defendant.
The information charges the defendants with having resisted a constable while engaged in the lawful execution of a criminal warrant issued by a justice of the peace under section 4489, Rev. St. The warrant, which is set out in the information, appears to have been for the arrest of the defendants and one or two others, and contained the substance of the complaint as charging them with having “assembled in a violent and tumultuous manner to do an unlawful act on Sunday on the premises of C. C. Palmer nnd S. D. Cane, and without authority of the owners thereof, to the terror and disturbance of others,” etc.
It is objected, on motion to quash the information and against its admission in evidence, that this warrant is void because issued upon a complaint which did not charge an offence, and as not containing in itself a substantial statement of any offence, the defect being that the unlawful act which the defendants assembled to do is not stated. It will be observed that the warrant contains more than the words of the statute defining the offence, in that it states that the defendants assembled to do an unlawful act on the premises of certain persons, without authority from them; very clearly implying a trespass upon such premises as the unlawful act. But treating the warrant and complaint as not stating the unlawful act, as claimed by the learned counsel of the plaintiffs in error, the warrant is not void by reason of such defect. Our statute (section 4511, Rev. St., copied from the state of Maine) attempts to maintain the distinctions between an unlawful assembly, rout, and riot as at common law; but rout proper, which is an attempt or motion of the unlawful assembly towards doing a lawful or unlawful act in a violent, unlawful, or tumultuous manner, to the terror or disturbance of others, is made an unlawful assembly, and rout is nominally abolished, and riot is the commission of any such act in the same manner and to the same offect.
But, as in many other cases of statutory changes of common-law offences, the reasons and consistency of these common-law distinctions are lost. At common law an assembly became unlawful alone by the manner of it, as by such circumstances of terror as tended to endanger the public peace and excite fear, alarm, and consternation among the people; and there need be no common purpose of such assembly except such as might be implied by an assembling in such manner, and which might be either lawful or unlawful; and rout was an attempt to carry out such implied common purpose by the assembly, whether lawful or unlawful, and riot is the execution of such common purpose; but both the attempt, as in rout, and the execution, as in riot, must be in the violent or tumultuous manner of the unlawful assembling, and to the terror of the people. 2 Arch. Crim. Plead. 590, 591; 2 Whart. Crim. Law, 1535; 1 Russ. Crimes, 387. In our statute the first unlawful assembling must be to do an unlawful act, and the second is an attempt to do in the same manner a lawful or unlawful act, and riot is the doing of a lawful or unlawful act in the same manner and to the same effect. It would seem that the first is the higher offence, as involving a common unlawful intent not present in the latter two. But without deciding what are the essential ingredients of these separate and distinct offences as made by the statute, attention is here called to the difference between an unlawful assembly at common law and by statute for the purpose of applying the authorities cited by the learned counsel of the plaintiff in error to the effect that the indictment or information must show that the assembly was unlawful. This, by the authorities cited, was shown by the proper averment that the assembling was in a violent or tumultuous manner, or under such circumstances that it would be unlawful. 2 Arch. Crim. Plead. 590 and note; Reg. v. Gulston, 2 Ld. Raym. 1210; Reg. v. Foley, 2 Salk. 593.
No authorities are cited upon the question here raised, and perhaps none can be found directly in point where the statute requires the assembling, to be unlawful, not only to be in a violent or tumultuous manner, but also “to do an unlawful act.” Whether such act must be stated in a complaint, indictment, or information, in order to charge the offence, must be determined somewhat as an original question and by analogous principles. Treating this as a statutory offence, it is a general principle that it may be charged in the language of the statute. Whart. Crim. Pl. & Pr. § 220. Such an information after verdict is sufficient in respect to all statutory offences, or where the punishment is prescribed by the statute. Section 4669, Rev. St.; State v. Welch, 37 Wis. 196;Kilkelly v. State, 43 Wis. 604;Rice v. People, 15 Mich. 9.There is a close analogy between an unlawful assembly to do an unlawful act and a conspiracy to do an unlawful act, and in the latter case the statement of the general purpose is sufficient without the means of accomplishing it. State v Crowley, 41 Wis. 271.
It cannot be objected that this complaint did not charge all of the essentials of an unlawful assembly under the statute, but only that it did not apprise the defendants of the unlawful act which they assembled to perform, so that they could know what was intended to be proved and meet the charge by defensive evidence. The complaint did charge that they assembled to do an unlawful act, but it failed to specify that act. It did not fail to state the fact, but it stated it generally, and not sufficiently or definitely, it is claimed. Such a defect would certainly not render the warrant issued upon it void by any principle. To constitute the next kind of unlawful assembly in the same section requires an attempt or motion towards doing a lawful or unlawful act. It might as well be claimed that a complaint under this clause should state what lawful or unlawful act was so attempted to be done in order to charge an offence.
In State v. Capp, 15 N. H. 212, it was contended that the indictment should have specified the several acts of resistance of the officer, but it was held unnecessary. So, in this case, the information charges the resistance of the constable,...
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