Commonwealth v. Abney

• Decision Date: 15 June 1961
• Citation: 171 A.2d 595,195 Pa.Super. 317
• Parties: COMMONWEALTH of Pennsylvania v. Charies ABNEY, David Jackson, Jackie Butler, James Thompson and William Abney.
• Court: Pennsylvania Superior Court

171 A.2d 595

195 Pa.Super. 317

COMMONWEALTH of Pennsylvania v. Charies ABNEY, David Jackson, Jackie Butler, James Thompson and William Abney.

Superior Court of Pennsylvania.

June 15, 1961.

Application for Allocatur Denied July 31, 1961.

Leon H. Fox, Jr., Fox & Fox, Norristown, for appellant.

Jules Bell, Asst. Dist. Atty., Norristown, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.

WOODSIDE, Judge.

This is an appeal by five of 14 defendants who were sentenced after a jury found them guilty of participating in a riot. The appellants contend that the judgments of sentence imposed upon them should be arrested, or in lieu thereof, that a new trial should be granted each of them.

Following a football game on September 25, 1959, in Norristown between the high schools of that borough and of Ridley Township, a continual series of violent and turbulent acts was perpetrated by a group of Norristown boys. The conduct of these boys far surpassed the exuberance of excited partisans which sometimes explodes following athletic contests, and which is generally accepted and endured, sometimes even enjoyed, by the specators.

This group of Norristown boys attacked the Ridley Township students. The attack was violent, brutal and indecent. The assailants charged into the visiting color guards and band members knocking at least one girl to the ground. They indecently assaulted the uniformed girls by feeling their breasts and pulling at their shorts. One assailant grabbed a girl by the arm and pulled her down the street. A number of the girls became hysterical. Five of the boys knocked one of the Ridley Township students to the ground twice and jumped on him and beat him. They hit another student in the mouth, another on the head, another on the shoulder, another on the arm another on the leg, another in the eye. They hit another of the Ridley Township boys over the head with a pipe, causing him to temporarily lose the sight of an eye. When the visiting boys and girls sought refuge in their automobiles and buses, the assailants followed them into the buses and cars, and continued the attacks. In one of the buses, they felt the girls' breasts and pulled at their pants, and kicked the boys. The Ridley Township bus windows were broken, and students were hurt by flying glass. A number of stitches were required to close the wound of one of the injured students. A bottle was thrown at a police car.

As aptly stated by the court below, 'It may be needless to observe that this occasion was terrifying to the Ridley Township pupils and to adults who supervised and accompanied them.'

As those accused of participating in this violence were juveniles, a petition was presented to the Juvenile Court of Montgomery County to have them declared delinquent. Most of the accused denied their participation in the disturbance, and following a practice in Montgomery County not here questioned, the cases of those denying their guilt were certified to the Court of Quarter Sessions for trial and disposition. See § 18 of the Act of June 2, 1933, P.L. 1433, 11 P.S. § 260; Trignani's Case, 1942, 150 Pa.Super. 491, 28 A.2d 702; Commonwealth v. Krynicky, 1946, 158 Pa.Super. 633, 46 A.2d 37. (The appellants were all over 14 years of age at the time of the brawl.)

Fifteen boys were indicted for participating in a riot and for conspiracy to participate in a riot. They pleaded not guilty, and were tried before a jury. The trial judge directed a verdict for one of the defendants on both charges and for all of the defendants on the conspiracy charge. The jury found the other fourteen defendants guilty of participating in a riot, and after refusing motions in arrest of judgment and for a new trial, the court sentenced them. Jackie Butler was committed to Montgomery County Hall, and the other four appellants were sentenced to 2 to 23 months in jail. We granted a supersedeas to the appellants. The other defendants who received jail sentences served their prison terms.

The Act of June 24, 1939, P.L. 872, § 401, 18 P.S. § 4401, provides that 'Whosoever participates in any riot, rout, unlawful assembly or affray, is guilty of a misdemeanor * * *' As the statute does not define riot, we must look to the common law for the elements of the offense. Blackstone says, 'A riot is 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 do any other unlawful act with force and violence, or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner.' Book IV p. 146.

'A riot is commonly defined as 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.' Commonwealth v. Kahn, 1935, 116 Pa.Super. 28, 31, 176 A. 242, 243. See 77 C.J.S. Riot § 1.

There can be no doubt that a riot occurred at Norristown on the night of September 25, 1959, following the Norristown-Ridley Township football game, and that the evidence supports the jury's conclusion that the appellants actively participated in it.

Appellants Wm. Abney, Charles Abney and David Jackson were identified by one of the teachers in their school as among the boys who ran into the color guards and band members. A witness testified that Jackie Butler, another appellant, was fighting with the Ridley Township boys, and that he threw a beer bottle at a police car. Jackie admitted being present and striking a boy. One of the participants testified Jackie was in the riot. Appellant Thompson was caught coming out of a Ridley Township bus by a police officer summoned by the bus driver. There is also evidence that Thompson grabbed a Ridley Township boy during the riot.

Counsel for the appellants advances numerous reasons why the Commonwealth's witnesses should not have been believed. The argument has no place here. The credibility of the...