People v. O'Neal
| Decision Date | 23 March 1970 |
| Docket Number | Docket No. 5502,No. 1,1 |
| Citation | 177 N.W.2d 636,22 Mich.App. 432 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy O'NEAL, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Milton R. Henry, Pontiac, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and QUINN and V. J. BRENNAN, JJ.
Defendant Billy O'Neal and two codefendants were tried before the court, after waiving their right to jury trial, on the charge of undertaking to incite a riot. M.C.L.A. § 750.505 (Stat.Ann.1954 Rev. § 28.773). The trial court acquitted both codefendants and found O'Neal guilty of inciting to riot. Defendant brings this appeal as of right.
On July 23, 1967, at approximately 5:20 p.m., defendant was observed walking down Hamilton Street in Highland Park with a group of four or five others. They stopped at the corner of Hamilton and Ford Avenue, where they conducted themselves in a loud and noisy manner. Their number grew to 10 or 15 persons and in the immediate vicinity there were approximately 60 or 70 persons, many of whom stood watching from their porches. Based on the actions and statements allegedly made by defendant, he was charged with undertaking to incite a riot.
On appeal defendant raises four issues which we address in the order raised.
1. Is M.C.L.A. § 750.505 (Stat.Ann.1954 Rev. § 28.773) and the information based on the statute unconstitutionally vague?
M.C.L.A. § 750.505 (Stat.Ann.1954 Rev. § 28.773) provides:
'Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.'
In this Court's recent opinion of People v. Lewis (1969), 20 Mich.App. 653, 174 N.W.2d 615, we held the statute made inciting to riot a felony. We stated at p. 657, 174 N.W.2d at p. 617:
'In summary, we hold that there was at the time the informations were issued no statutory prohibition against rioting or inciting to riot; that rioting and inciting to riot were indictable offenses at the common law (even though misdemeanors), and that by the provisions of C.L.S.1961, § 750.505 these offenses were made felonies.'
In People v. Pickett (1954), 339 Mich. 294, 63 N.W.2d 681, defendant raised numerous arguments attacking the constitutionality of the statute. In Pickett, as here, the arguments centered around the alleged vagueness of the statute. Beginning at 310, 63 N.W.2d at 689 the Court stated:
Defendant argues, however, that cases cited by the Court in Pickett do not support the conclusion of the Court and do not meet the arguments of defendant. Defendant states: 'It is hard to conclude anything other that that the constitutional questions raised in the Pickett case, and reasserted herein have not yet been thoroughly and finally considered by the courts of Michigan.'
Although we are not unimpressed by defendant's thorough and well reasoned brief, we conclude that the arguments raised in the instant case were fully presented to the Court in Pickett and rejected. If as defendant argues, Pickett was incorrectly decided, it is for the Supreme Court to say. As an intermediate appellate court, we are bound by the Supreme Court's opinion in Pickett.
2. May defendant be tried for undertaking to incite three or more persons to riot when M.C.L.A. § 750.521 (Stat.Ann.1954 Rev. § 28.789) requires 12 or more armed persons, or 30 or more unarmed persons?
M.C.L.A. § 750.521 (Stat.Ann.1954 Rev. § 28.789), 1 provides:
'If any persons, to the number of 12 or more, being armed with clubs, or other dangerous weapons, or if any persons, to the number of 30 or more, whether armed or not, shall be unlawfully, riotously or tumultuously assembled in any township, city or village, it shall be the duty of the mayor and each of the aldermen of such city, the supervisor of such township, the president and each of the trustees or members of the common council of such village, and of every justice of the peace, living in such township, city or village, and also for the sheriff of the county and his deputies, and any member of a city police force and any member of the Michigan state police, to go among the persons to assembled, or as near to them as may be with safety, and in the name of the people of this state, to command all the persons so assembled immediately and peaceably to disperse: Provided, however, That the above provision with reference to any member of a city police force shall not apply to any such police officer while he is privately employed.'
In People v. Lewis, Supra, 20 Mich.App. at p. 656, 174 N.W.2d at p. 615 this Court held that inciting to riot does not come under this statute, but rather under M.C.L.A. § 750.505, Supra. At p. 657, 174 N.W.2d at p. 617 we stated:
'Nor do we construe the statute as impliedly prohibiting inciting to riot and rioting since such an implication is unwarranted unasmuch as both were indictable offenses at common law, and as such, absent an express statutory punishment, are punishable under C.L.S.1961, § 750.505 as felonies.'
Inasmuch as M.C.L.A. § 750.521, Supra, does not apply to the instant case, the requirements or 12 or more armed persons or 30 or more unarmed persons also does not apply. As noted in 4 Gillespie, Mich. Criminal Law and Procedure (2d ed), § 2206, p. 2433:
'A riot at common law may be defined as a tumultuous disturbance of the peace by three or more persons, assembling together at their down authority, with the intent mutually to assist one another against all who shall oppose them, and afterwards putting the design into execution in a turbulent and violent manner, whether the object in question be lawful or otherwise.'
3. Was the evidence adduced at trial sufficient to support defendant's conviction?
At trial the court received the following testimony concerning defendant's conduct:
(1) Patrolman Bledsoe testified that he heard defendant talking in a loud voice, trying to get the people to go home and get their guns and kill the police.
(2) Officer Solomon testified that he heard defendant shouting 'Let's overthrow the police.' He also testified, referring to defendant: 'He said, 'Go home and get your guns and kill all these dirty rotten * * *' I am not going to use the exact language. 'We're going to burn this town down like we burned Detroit." Officer Solomon also stated that after defendant was arrested: 'He yelled at the top of his voice that, 'Look what they're doing to me. Don't let them take me. Shoot them. Kill them."
(3) Officer Neal, referring to defendant, testified: '(A)s we started to place them under arrest, he was screaming, 'Don't let these White M.F. cops arrest us. We outnumber them. Don't let them take us in."
(4) Officer Pitton testified that defendant was calling slogans to the people and that he stated:
(5) Defendant and his companions testified that they were walking down the street peacefully when they were besieged by police.
The trial court recognized the conflict in the testimony and resolved the differences against defendant. The...
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