State v. Butter Worth

• Decision Date: 14 May 1928
• Docket Number: No. 1-A.,1-A.
• Citation: 142 A. 57
• Parties: STATE v. BUTTER WORTH et al.
• Court: New Jersey Supreme Court

142 A. 57

STATE

v. BUTTER WORTH et al.

No. 1-A.

Court of Errors and Appeals of New Jersey.

May 14, 1928.

Error to Supreme Court.

John C. Butterworth and others were convicted of holding an unlawful assembly. Conviction was affirmed by Supreme Court in 139 A. 161, and defendants bring error. Reversed.

Arthur T. Vanderbilt, of Newark, for plaintiffs in error.

J. Vincent Barnitt, of Paterson, Prosecutor of the Pleas, for the State.

KALISCH, J. The plaintiffs in error were jointly indicted, tried, and convicted at a special session of the court of general quarter sessions of the peace in and for the county of Passaic, on an indictment charging them with the offense of an unlawful assembly; the trial judge, by virtue of the statute, sitting without a jury.

Judgment having been passed upon the defendants, a writ of error was sued out of the Supreme Court, which tribunal affirmed the judgment (139 A. 161), now before us for review by writ of error to the Supreme Court.

The indictment charges that on the 6th day of October, 1924, the defendants, with force and arms at Passaic, etc., together with divers other evil disposed persons to the number of 500 and more, to the jurors aforesaid unknown, unlawfully, routously, riotously, and tumultuously did assemble and gather together to the disturbance of the public peace, and, being so unlawfully assembled and gathered together then and there unlawfully, routously, riotously, and tumultuously did make a great noise and disturbance, and did then and there remain and continue together as aforesaid, for the space of one hour then next following, and, being so then and there unlawfully assembled and gathered together, as aforesaid, did then and there unlawfully, routously, riotously, and tumultuously make and utter great and loud noises and threatenings, signifying, among other things, that the purpose and intent of the said defendants and their aforesaid associates, whose names are to the jurors unknown as aforesaid, unlawfully, routously, and riotously and tumultuously to beat and assault and frighten and intimidate certain quiet and orderly persons then and there gathered and standing, passing, or repassing in and upon the public streets of the said city of Paterson, and unlawfully, routously, riotously and tumultuously assembled and gathered together to disturb the public peace and commit assault and battery upon the police officers, patrolmen, and officers of the police department of the said city of Paterson, and to break, injure, damage, and destroy and wreck the city hall, a municipal and public building of the said city of Paterson, to the great terror and disturbance, not only of the citizens of the said state there being and residing, but of all others the citizens of the said state passing and repassing in and along said public street and common highways there, contrary to the form of the statute, etc.,

Section 215 of the Crimes Act (2 Comp. Stat. 1910, p. 1811) provides:

"Assaults, batteries, false imprisonments, affrays, riots, routs, unlawful assemblies, nuisances, cheats, deceits and all other offenses of an indictable nature at common law, and not provided for in or by this or some other act of the Legislature, shall be misdemeanors, and be punished accordingly."

This section was embodied in the first codification of the Crime Act, adopted March 18, 1796, Paterson's Laws of New Jersey, p. 220, § 68, which section has remained unaltered up to the present time. The legal effect of the section was to leave the common law intact as to what acts constituted an indictable offense of unlawful assembly.

The right of the people to meet in public places to discuss in open and public manner all questions affecting their substantial welfare, and to vent their grievances, to protest against oppression, economic or otherwise, and to petition for the amelioration of their condition, and to discuss the ways and means of attaining that end, were rights confirmed and guaranteed them by the Magna Charta, Petition of Right, and the Bill of Rights, the mainstay of the British Constitution, and the bases of both our federal and state Constitutions. Of course, it goes without saying this inestimable boon of liberty was to be enjoyed by the people in a peaceful and law-abiding manner.

Our Federal Constitution recognized this invaluable right of the people by declaring, in article 1 of its amendments:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances," etc.

Our state Constitution, article 1, pl. 18, declares:

"The people have the right freely to assemble, together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances."

These constitutional mandates, being in favor of the liberty of the people, must be given the most liberal and comprehensive construction. In order to accomplish this in a satisfactory manner, we must pay due regard to what the common law of England was on the subject in hand before the adoption of our Constitution. This Vital fact was fully appreciated by the framers of our state Constitution, and finds expression in article 10, pi. 1:

"The common law and statute laws now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the Legislature."

As has been previously indicated herein, the common-law rule as to what acts shall constitute an unlawful assembly has not been altered or repealed by statute.

This situation, therefore, leaves two questions to be determined: Firstly, what were the essential elements of an unlawful assembly at common law? Secondly, do the facts elicited by the testimony establish the offense of unlawful assembly, as charged in the in dictment against the defendants?

Now, first, as to what was deemed to be an unlawful assembly at common law. This query seems to be satisfactorily answered by what was considered to be essential to be set forth in an indictment to charge the offense of unlawful assembly at common law. In the instant case the indictment is in the common-law form. Its language clearly indicates the common-law concept of what constituted an indictable unlawful assembly. It contains all the requisites of the common-law offense of unlawful assembly. 2 Chitty on Cr. Law, 276, 277; Crown Circuit Companion, pp. 413, 414, 415; 2 Wharton, Precedents of Indictments and Pleas, 855, 856, 857.

The result of a careful examination of the cases dealing with this particular branch of the criminal law may be tersely summed up as follows: At common law, any gathering together of three or more persons, with intent to disturb the public peace, accompanied by some overt act or acts to effect that intent, was an unlawful assembly.

The character of the overt acts essential to manifest this intent was of various kinds, as is illustrated by the precedents of indictments. Thus, for instance, if those gathering were armed, or were conducting themselves in such a disorderly manner as to give firm and courageous persons in the neighborhood reasonable grounds to apprehend a breach of the peace as a result thereof, such gathering would be an unlawful assembly.

In Reg. v. Cunninghame, Graham and Burns, 16 Cox, Cr. Cas., Charles, J., in charging the jury at page 427, said:

"Now with regard to an unlawful assembly, what is an unlawful assembly? That has been laid down by the very highest authorities in these terms: An unlawful assembly is an assembly of persons with the...