Cohen v. State

• Decision Date: 09 December 1937
• Docket Number: 16.
• Citation: 195 A. 532,173 Md. 216
• Parties: COHEN v. STATE. [*]
• Court: Maryland Court of Appeals

195 A. 532

173 Md. 216

COHEN v. STATE. ^[*]

No. 16.

Court of Appeals of Maryland

December 9, 1937

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Harry Cohen was convicted of inciting a riot and for riot, and he appeals.

Affirmed.

Isaac Lobe Straus and Harry O. Levin, both of Baltimore, for appellant.

Hilary W. Gans, Deputy Atty. Gen., and Philemon B. Coulter, Asst State's Atty., of Baltimore (Herbert R. O'Conor Atty. Gen., on the brief), for the State.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

SLOAN Judge.

Harry Cohen, the appellant, was indicted on charges of inciting a riot and for riot in the city of Baltimore on the 12th day of December, 1936. There were six counts in the indictment, the first four charging Harry Cohen with inciting to riot; the fifth and sixth charging him with divers other persons with rioting. The defendant demurred to the indictment, and to each count. The demurrer was sustained to the first and third counts, and overruled as to the others, and the adverse rulings on the demurrers requires consideration before taking up the bill of exceptions. Kendrick & Bros. v. Warren Bros. Co., 110 Md. 76, 72 A. 465; Kaefer v. State, 143 Md. 151, 160, 122 A. 30; Code, art. 5, §§ 2, 86.

The only objection to the second and fourth counts is that there is no time fixed for the commission of the offense of inciting riot, and this applies to the fifth and sixth counts, as well, on the theory that the time was only alleged in the first count, and that, the demurrer having been sustained, it took it bodily out of the indictment, and the statement of time in the remaining counts 'on said day in said year' was not referable to the date stated in the first count. The decision of the trial court on the demurrers to the first and third counts did not take them out of the record; it meant that the charge attempted to be made was not sufficiently alleged, and the defendant could not be tried on those counts. No authority was cited on this point, but, to reject it, it is only necessary to refer to 31 C.J. 680, §§ 209, 686-688, §§ 217-223, and the cases there cited.

The objection to the fifth and sixth counts was argued on the assumption by the defendant that it did not come within the definition of 'riot,' and that, unless there was an indictment of three named defendants, the charge cannot be sustained. In some states the charge of riot is statutory, but in this state it is a common-law offense. The fifth count charged that 'Harry Cohen, on the said day in said year, at the City aforesaid, together with divers persons to the Jurors aforesaid unknown, unlawfully, riotously and tumultuously, did assemble and gather together to disturb the peace of the said City and State; and then and there being so gathered together, did make a great noise, riot, tumult and disturbance, and then and there unlawfully, riotously and tumultuously remained and continued together for a long space of time, to-wit, for the space of fifteen minutes and more next following, to the great terror and disturbance of the persons thereabout inhabiting, residing and being, and passing and repassing upon the public highway there, and to the terror of the people of the said State,' etc. The sixth count charged that 'Harry Cohen, on the said day in the said year, at the City of Baltimore aforesaid, together with divers persons to the jurors aforesaid unknown, unlawfully, riotously and tumultuously, did assemble and gather together to disturb the peace of the said City and State; and then and there being so assembled and gathered together, then and there riotously did assault, intimidate and interfere with divers persons to the Jurors aforesaid unknown, and did destroy certain vehicles, to-wit, certain taxicabs, then and there being the property of certain persons to the Jurors aforesaid (unknown), to the great disturbance and terror of the people,' etc.

The defendant contends that these counts omit many of the definitions of riot at common law, and essential to an indictment. We agree with all of the definitions, but disagree with the defendants' conclusions as to their effect on this indictment. At common law it was necessary that three or more persons be unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others, and assault or destruction of property may or may not be incident to the execution of the riot. The assembly must be unlawful, else there is no riot, and the unlawful assembly must be charged in the indictment, Hochheimer, Cr.Law, §§ 429-431. In Kaefer v. State, 143 Md. 151, 122 A. 30, 31, thirteen named persons were indicted for unlawful assembly and riot, 'with divers other evil-disposed persons to the number of fifty or more.' The defendants there demurred, and the demurrer was overruled, and on appeal affirmed. The only substantial, not material, difference between that indictment and this one, is that in the Kaefer Case thirteen were named as rioters, while in this case there is one. One person can be charged with rioting, provided he is alleged to have been so engaged with at least two other persons. If known to the grand jury, they should be indicted; if unknown, it is essential that the indictment so state. If three are indicted by name, and there is no charge that divers others were associated with them, then a conviction of two would be invalid. In Commonwealth v. Berry, 5 Gray (71 Mass.) 93, Berry, Salisbury, and Foster, 'together with divers other evil disposed persons * * * committed a riot.' They were tried separately. In Berry's Case the trial judge charged the jury '* * * if the defendant joined in the riot with the two persons named, or any other two persons, though unknown to the grand jury, it would be sufficient.' On appeal the Supreme Judicial Court said: 'It is undoubtedly true that a riot cannot ordinarily be committed by one person. It is the acting in concert, the unlawful combination, which constitutes the offense. The direction was strictly correct. Whether the other rioters were named in the indictment, or not, proof of a riot in which any two other persons joined with the defendant was sufficient.' Martin v. State, 115 Ga. 255, 41 S.E. 576. In the case of the King v. Sudbury, Heaps and others, 12 Mod. 262, Case 473, 1 Lord Raymond, 484, 'Defendants were indicted for that they riotose et routose assemblaverunt, and so assembled committed a battery on Mary Russell. Two of them were found guilty and all others were acquitted; and judgment was arrested for two cannot commit a riot.' It was there said by Lord Holt, C.J., 'If the indictment had been, that the defendants with divers other disturbers of the peace, had committed this riot and battery, and the verdict had been, as in this case, the King might have had judgment.' 3 Bishop's New Co.Proc. § 998(2); 3 Salk, 317, 90 Eng.Rep. 1251; 91 Eng.Rep. 846; 54 C.J. 835, § 19. We find no objection to the second, fourth, fifth, and sixth counts of the indictment, the questions raised by the defendant being, in our opinion, on matters which can only arise on exceptions to evidence, which will be later herein discussed.

There were sixty-nine exceptions reserved by the defendant in the course of the trial, of which sixteen were abandoned on appeal. The first nine arose on the examination of the petit jurors to ascertain their qualifications, all others on objections to evidence, except the last three, which were on motions for a mistrial, and, in addition to the questions raised by the bill of exceptions, the defendant, in this court, attacks the sentence, which is a fine of $5,000 and 3 months in the Maryland Penitentiary, as unconstitutional.

Exceptions 1 to 9, inclusive, were all to the refusal of the court to allow defendant's counsel to interrogate the petit jurors who were questioned by the court to the end that a list of twenty qualified jurors might be furnished from which each side had the right to strike four. Code, art. 51, §§ 13 and 17. No exceptions had been taken to any questions put to the jurors by the court, all of which were designed to ascertain whether they were free from bias or prejudice, and all of which went to their qualifications to sit in the cace. The defendant's counsel during this examination asked some additional questions, which the court refused to allow him to do, and to which rulings exceptions were taken. After the first two jurors had been examined by the court, the court suggested to defendant's counsel that he make up a list of questions going to the qualifications of the jurors, and from them he would ask such questions as he thought touched their qualifications. Only three of the questions submitted went to the qualifications, and these, in substance, at least, had been asked the first two jurors, and it was agreed in the record that substantially the same questions had been propounded to each prospective juror. The impression we get from these nine exceptions is that the defendant is not aggrieved, certainly not injured, by the refusal to have any specific questions asked, but for the refusal of the court to allow him to take over the examination of jurors. 'It is only when permitted by the court, in the exercise of its discretion, that counsel may examine such jurors.' Beck v. State, 151 Md. 615, 620, 135 A 410, 412. 'The purpose of the examination is to ascertain, as nearly as may be learned from a juror's answers, whether he is so free of bias or prejudice as to give the one to be tried a fair trial, and it is the duty of the court to furnish him such jurors.' Lee v. State, 164 Md. 550, 557, 165 A. 614, 617. The examination which the party is thus entitled to have made is only a means to the end...