Koss v. State

• Decision Date: 05 February 1935
• Citation: 217 Wis. 325,258 N.W. 860
• Parties: KOSS ET AL. v. STATE. YARIS ET AL. v. STATE.
• Court: Wisconsin Supreme Court

217 Wis. 325

258 N.W. 860

KOSS ET AL.

v.STATE.

YARIS ET AL.

v.STATE.

Supreme Court of Wisconsin.

Feb. 5, 1935.

Error to review judgments of the Municipal Court of Milwaukee County; A. H. Reid, Circuit Judge.

Affirmed.

Actions by the state of Wisconsin against Ivan Koss, Frederick Bassett, Harry Yaris, and Lillian Husa for engaging in an unlawful assembly and riot in violation of section 347.02, Stats. Upon a trial by jury, a verdict was returned finding the defendants guilty. Judgments were entered accordingly, and defendants procured a writ of error.Samuel D. Berg, of Milwaukee (George J. Laikin, of Milwaukee, of counsel), for plaintiffs in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William A. Zabel, Dist. Atty., and Thomas A. Byrne, Asst. Dist. Atty., both of Milwaukee, for the State.

FRITZ, Justice.

[1] The plaintiffs in error, hereinafter called the defendants, contend that a verdict finding each of them guilty of engaging in an unlawful assembly and riot in violation of section 347.02, Stats., is not supported by, and is contrary to, the evidence; and that the court's instructions to the jury were erroneous, misleading, and prejudicial. A review of the record discloses that the evidence established the following facts beyond a reasonable doubt: On September 27, 1933, Dr. Luther, the German ambassador to the United States, was expected to arrive at about 1 p. m. at the Milwaukee Club, located on the east side of N. Jefferson street, at the intersection of E. Wisconsin avenue, in a busy downtown section of the city of Milwaukee. The traffic is heavy on both of those public highways, and the principal entrance to a large hotel is on the west side of N. Jefferson street, immediately opposite the entrance to the Milwaukee Club. At 1 p. m. about 200 persons, including the defendants, assembled in front of the club entrance and blockaded pedestrian travel on the east sidewalk, and north-bound vehicular travel on the east half of the roadway on N. Jefferson street. Six signs, with wording such as “Luther agent of the bloody Hitler.” “Roosevelt where is the unemployment insurance you promised the workers,” etc., were displayed on sticks carried by persons in the crowd. Each of the defendants, raised, in turn, on to the shoulders of others standing in the roadway near the east curb in front of the club entrance, addressed the assembly in protests against German Fascism, Hitlerism, and Dr. Luther's visit in furtherance thereof. A police sergeant endeavored to go among the assembled persons and to the speakers in the center of the crowd, and commanded them to disperse because they were blockading the traffic on the street and to the club. The defendants urged the assembled persons not to move, and many of the latter, by locking arms, closed in around the defendants and prevented the police sergeant and three other police officers, who came to his assistance, from dispersing the assembly. The officers telephoned for police reinforcements to aid in suppressing the disturbance, and a serious mêlée resulted. The officers' attempts to remove some of the disturbers were resisted with the assistance of others, including the defendants, who advised resistance and raised their arms in a fighting attitude. One officer was kicked in the groin, spit in the face, and struck on the head with one of the signs, and another man standing on the west sidewalk was hit with a sign. Meanwhile the assembly became so large that public travel was blockaded over the entire width of N. Jefferson street, until the police, upon the arrival of reinforcements and the arrest of the defendants and other leaders in the disturbance, finally succeeded in dispersing the assembly.

Those facts well warranted the jury in finding that the defendants willfully participated in assembling and keeping together on a public highway a large number of persons who, while so assembled, unlawfully and in a violent and tumultuous manner blockaded the entrance to the Milwaukee Club and lawful passage along N. Jefferson street by persons entitled to use the street for those purposes without being disturbed; and who also unlawfully refused to disperse peaceably when commanded to do so by police officers. Defendants' conduct in those respects was clearly in violation of the provisions in section 347.02, Stats., that: “Any three or more persons who, * * * being together, shall make any attempt or motion towards doing a lawful or unlawful act in a violent, unlawful or tumultuous manner, to the terror or disturbance of others, shall be deemed an unlawful assembly; and if they commit such acts in the manner and with the effect aforesaid they shall be deemed guilty of a riot and shall be punished,” etc.

[2] There may be a punishable violation under those provisions, even though the accused did not assemble, at the outset, in a violent or tumultuous manner to do an unlawful act. True, a gathering which assembles, at the outset, for the purpose of doing an unlawful act, constitutes one type of unlawful assembly that is punishable under that statute. But, as was recognized in Bonneville v. State, 53 Wis. 680, 684, 11 N. W. 427, there is also a second type of unlawful assembly that is punishable under that statute. Even though, at the outset, three or more persons assemble peaceably, without any violent or tumultuous manner, and to do but a lawful act, nevertheless, if thereafter, being together, they make any attempt or motion to do any act, whether lawful or unlawful, in either a tumultuous, violent, or unlawful manner, to the terror or even only to the disturbance of others, they become an unlawful assembly, and, if they commit such act in that manner and with that effect, they are guilty of a riot, and subject to punishment under the statute.

[3][4] As the evidence established beyond a reasonable doubt that the assembly in question unlawfully blockaded public travel on the street, and also unlawfully refused to disperse when commanded to do so by the police officers, it was of the second type which is prohibited by section 347.02, Stats. Under those circumstances, the following instructions, excepted to by the defendants, but in which the court rightly stated what ultimate facts had to be established in these cases in order to find that offenses were committed in violation of section 347.02, Stats., were applicable and proper in all respects, to wit:

“And if after the assembly had occurred and while the meeting was being held and speeches were being made the assembly attempted or made a move toward blockading the sidewalk or the street, or both, or blockading the entrance to the Milwaukee Club, such assembly became an unlawful assembly and if it was violent and tumultuous and resulted in...