CORRETT v. Commonwealth

• Citation: 171 SE 2d 251,210 Va. 304
• Decision Date: 01 December 1969
• Docket Number: Record No. 7258.
• Court: Supreme Court of Virginia
• Parties: LINWOOD CORRETT v. COMMONWEALTH OF VIRGINIA.

210 Va. 304

171 SE 2d 251

LINWOOD CORRETT v. COMMONWEALTH OF VIRGINIA.

Record No. 7258.

Supreme Court of Virginia.

December 1, 1969.

Present, All the Justices.

Defendant was identified as present at scene and part of assembly. Only evidence as to his purpose could reasonably be interpreted as consistent with lawful purpose. Error arbitrarily to adopt interpretation which incriminates. Since conviction is reversed on another point it is unnecessary to determine whether challenged portion of statute is unconstitutional.

Error to a judgment of the Hustings Court of the City of Richmond. Hon. Samuel B. Witt, Jr., judge presiding.

Robert E. Shepherd, Jr., for plaintiff in error.

M. Harris Parker, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for defendant in error.

SNEAD

SNEAD, C.J., delivered the opinion of the court.

Appellant, Linwood Corbett, on a plea of not guilty, was tried by the court without the intervention of a jury and convicted on a warrant charging that he did "unlawfully assemble without authority of law and for the purpose of disturbing the peace and exciting alarm or disorder" under Code, | 18.1-254.1(c). ¹ His punishment was fixed at a fine of twenty-five dollars and imposition of further sentence was suspended during good behavior for twelve months. To this judgment we granted Corbett a writ of error.

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"(c) Whenever three or more persons assemble with the common intent or with means and preparations to do an unlawful act which would be riot if actually committed, but do not act toward the commission thereof, or whenever three or more persons assemble without authority of law and for the purpose of disturbing the peace or exciting public alarm or disorder, such assembly is an unlawful assembly."

On April 7, 1968 the City of Richmond experienced a series of civil disorders in the wake of Martin Luther King's assassination, in Memphis, Tennessee, several days before. The record shows that on April 7 at about 1:15 a.m. a large crowd of Negroes had congregated at Third and Broad streets in Richmond. Responding to a radio call indicating that the window of a bank at Third and Broad had been smashed, Officers Bogart and Shook of the Richmond Police Department arrived at the scene in a police car. The officers testified that they observed Appellant standing on an upturned trash can waving his hands and addressing the crowd. The group was "noisy", some of its members were "screaming and hollering" and "jumping up and down" but some others appeared to be trying to listen to Corbett.

The officers testified that as they drove up they heard Corbett say to the crowd "We'll be back again tomorrow night bigger and stronger". Officer Shook took Corbett by the arm, motioning for him to get down, and as he led him to the police car Corbett said, "But all I ask for is a peaceful demonstration". Shook presumed that this statement was "directed to the crowd", but he "felt like" it was meant for him.

The officers testified that they heard nothing of what Corbett said to the crowd before the statement "We'll be back again tomorrow night bigger and stronger"; that he had no weapon and that they did not see him break any windows or anything of that nature.

Corbett testified that he was employed at the Greyhound Bus Terminal and was at work there on the night in question. Sometime after midnight he saw from the front door of the bus station a commotion at Fourth and Broad streets. He went to the scene of the disurbance and observed a large man confronting a police officer and a dog. The officer and the man "was going at it, the officer was siccing his dog on him." Corbett stated he grabbed the man and attempted to get him away from the officer, and with the help of some others was able to restrain the man. This testimony was corroborated by Barry Barkan, a newspaper reporter who stated that he observed the incident.

At that point, according to Corbett, he led the man and the crowd that had gathered, to the opposite end of the block from the policeman. Corbett then climbed onto the trash can and spoke to the crowd with the intention of exhorting the people there to demonstrate in a more orderly manner. "I got up with a desire * * * in my heart to try to do something constructive, not destructive, my only intentions were to tell the people if you are going to be here * * * demonstrate in a more orderly manner * * *".

In his assignments of error Corbett attacks the sufficiency of the evidence to sustain his conviction and the constitutionality of that portion of | 18.1-254.1(c) upon which the charge in the warrant is based.

"When the sufficiency of the evidence is challenged after conviction it is our duty to view it in the light most favorable to the Commonwealth, granting all reasonable inferences fairly deducible therefrom. The judgment should be affirmed unless 'it appears from the evidence that such judgment is plainly wrong or without evidence to support it'. | 8-491, Code, 1950; Toler Commonwealth, 188 Va. 774, 781, 51 S.E.(2d) 210, 213; Wright Commonwealth, 196 Va. 132, 137, 82 S.E.(2d) 603, 606." Crisman Commonwealth, 197 Va. 17, 18, 87 S.E.2d 796, 797 (1955).

Viewed in this light the evidence shows the existence of a "noisy" crowd of between thirty-five and fifty persons congregated on a downtown street corner at about one o'clock in the morning at a time when the...