Commonwealth v. Frishman

• Decision Date: 05 April 1920
• Parties: COMMONWEALTH v. FRISHMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 449

126 N.E. 838

COMMONWEALTH

v.FRISHMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1920.

Exceptions from Superior Criminal Court, Suffolk County; Franklin G. Fessenden, Judge.

Alex Frishman and others were convicted of a riot, and they except. Exceptions overruled.

1. RIOT k5-COMPLAINT HELD TO SUFFICIENTLY CHARGE COMMON-LAW OFFENSE.

Counts of complaints charging that defendants on a stated date unlawfully, riotously, and tumultuously assembled with 30 or more persons, and while so assembled wounded with a knife a police officer engaged in dispersing the unlawful assembly, sufficiently charged the common-law offense of a riot.

2. RIOT k6-EVIDENCE HELD TO SHOW THAT SOCIALISTS WALKING STREET WERE A ‘PROCESSION OR PARADE,’ AND ‘MARCHING.’

In prosecutions for riot, evidence held to warrant finding that a crowd of Socialists walking along a street constituted a ‘procession or parade,’ and that they were ‘marching’ on a public street, within regulation of street commissioners of city of Boston, vested with authority by St. 1908, c. 447, providing that no procession or parade of 200 or more persons shall march on any street except under permit.

3. RIOT k1-PARADE OF SOCIALISTS ON STREET WITHOUT PERMIT UNLAWFUL.

A parade of Socialists on a public street in the city of Boston without permit, as required by regulation of the board of street commissioners of the city, vested with authority in the premises by St. 1908, c. 447, was unlawful.

4. RIOT k1-UNLAWFUL PARADERS WITHOUT PERMIT GUILTY.

Defendants who participated in a common purpose by force and violence to march on a public street in the city of Boston without permission, and in violation of a regulation of the board of street commissioners, vested with authority by St. 1908, c. 447, were guilty of a riot.

5. RIOT k3-DEFENDANTS PRESENT, AIDING AND ABETTING, GUILTY AS PRINCIPALS.

If defendants were acting in concert with others for a common unlawful purpose, that is, by force and violence to march or parade on a public street without permission, and in violation of a regulation of the street commissioners of the city, it was not necessary, to constitute a riot, that all should commit some physical act; it being enough if all were aiding and abetting by their presence, and all being guilty as principals if they were present, consenting and in a position under which they might render aid and assistance.

6. RIOT k7-INSTRUCTION THERE WAS NO EVIDENCE TO JUSTIFY FINDING AS TO ASSAULT PROPERLY DENIED.

In a prosecution of certain Socialist street paraders without permit, for a riot in course of which a police officer was stabbed, defendants' request for ruling that there was no evidence to justify finding that officer was stabbed with a knife was properly refused, though there was no direct evidence that stab was so caused; the allegation of assault being merely incidental to the charge of riot.

7. RIOT k6-CONVICTION PROPER, DESPITE ABSENCE OF PROOF OF INCIDENTAL STABBING OF POLICE OFFICER.

Under Rev. Laws, c. 218, s 35, and in view of sections 21, 34, in a prosecution of certain Socialist street paraders without permit for a riot, in course of which a police officer was stabbed, 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 even that he was stabbed at all.

8. RIOT k6-UNNECESSARY TO PROVE THAT UNLAWFUL PARADERS, GUILTY AT COMMON LAW, WERE COMMANDED TO DISPERSE BY OFFICIALS.

To convict of a riot certain Socialists, parading a public street without a permit, as required by a regulation of street commissioners of the city of Boston, it was not necessary to prove parade was commanded to disperse by any of the officials named in Rev. Laws, c. 211, s 1; the offense charged being a common-law riot, independent of statute.Daniel M. Lyons, Asst. Dist. Atty., of Boston, for the commonwealth.

Thomas G. Connolly, of Boston, and Edward J. Casey, of Dorchester, for defendants.

CROSBY, J.

[1] These complaints, in the second counts, charge that the defendants on May 1, 1919, ‘did unlawfully, riotously and tumultously assemble with 30 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, lawfully engaged in dispersing and suppressing such unlawful assembly. * * *’ The allegations in the second counts fully and sufficiently charge the defendants with the common-law offense of a riot. Commonwealth v. Runnels, 10 Mass. 518, 6 Am. Dec. 148; Commonwealth v. Gibney, 22 Allen, 150; Train & Heard, Precedents of Indictments and Special Pleas, 456; 3 Bishop's New Criminal Procedure, § 992(2).

[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 1,500 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 caried; 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 a permit issued by the board of street commissioners.’ St. 1854, c. 448, § 35, St. 1908, c. 447.

No permit has 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...