State v. Cole

• Decision Date: 25 March 1959
• Docket Number: Nos. 722,723,s. 722
• Citation: 249 N.C. 733,107 S.E.2d 732
• Parties: STATE of North Carolina v. James COLE, James Garland Martin and others to the State unknown.
• Court: North Carolina Supreme Court

Page 732

107 S.E.2d 732

249 N.C. 733

STATE of North Carolina v. James COLE, James Garland Martin and others to the State unknown.

Nos. 722, 723

Supreme Court of North Carolina.

March 25, 1959

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Claude L. Love, Bernard A. Harrell, Staff Atty., Raleigh, for the State.

Charles B. Nye, Daniel M. Williams, Jr., Durham, for defendant Cole.

E. L. Alston, Jr., Greensboro, for defendant Martin.

DENNY, Justice.

We shall first consider certain assignments of error based on exceptions which both defendants have preserved and argued in their respective briefs.

The defendants insist that the trial court committed error in refusing to sustain their respective motions to quash the bill of indictment. They contend that while the indictment attempts to charge the defendants and their companions or associates with unlawful assembly, the indictment does not set forth any unlawful purpose or any unlawful acts which the defendants assembled to commit; that it does not charge the defendants with the necessary elements of an attempt to mutually assist each other against lawful authority. The arguments in the briefs are substantially as if the defendants were charged with engaging in a riot, when, as a matter of fact, the bill of indictment charges the defendants, and others to the State unknown, with inciting a riot.

The crimes of inciting a riot and participating in a riot are separate and distinct offenses against the public peace. Both crimes have their origin in the common law.

'Inciting to riot is not a constituent element of riot; they are separate and distinct offenses. * * * One may incite a riot and not be present or participate in it, or one may be present at a riot, and by giving support to riotous acts be guilty of riot, yet not be guilty of inciting to riot.' Commonwealth v. Safis, 122 Pa. Super. 333, 186 A. 177, 180; 77 C.J.S. Riot § 1(b), page 423.

In the case of Commonwealth v. Egan, 113 Pa.Super. 375, 173 A. 764, 766, it was held that inciting to riot is a common law offense, the gist of which is its tendency to provoke a breach of the peace, though the parties first assembled for an innocent purpose. The Court said: 'Giving the word 'incite' its plain and accepted meaning--to arouse, stir up, urge, provoke, encourage, spur on, goad,--there can be no doubt of the offense charged * * *. Inciting to riot, from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot. If any men or set of men should combine and arrange to so agitate the community to such a pitch, that the natural, and to be expected results of such agitation, would be a riot, that, would be inciting to riot, an offense at common law * * *.' Commonwealth v. Sciullo, 169 Pa.Super. 318, 82 A.2d 695.

In the instant case, the bill of indictment does charge that the defendants while armed with certain weapons, did assemble near the Town of Maxton for the common purpose of conducting a meeting and rally of the so-called Knights of the Ku Klux Klan, with the common intent to preach racial dissension and to coerce and intimidate the populace. We hold that the indictment adequately charges an unlawful purpose and that the case of State v. Baldwin, 18 N.C. 195, relied on by the defendants, is distinguishable and not controlling on the charge contained in the bill of indictment in this case.

The defendants were not convicted of unlawful assembly or riot, but of inciting to riot. Naturally, they could not have been convicted of inciting to riot unless the incitement resulted in a riot. 'It must be shown in riot that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least having an apparent tendency thereto, as were calculated to inspire people with terror, such as being armed, making threatening speeches, turbulent gestures, or the like, or being in disguise * *. In any case, it is well settled that it is not necessary that personal violence be committed * * *.' Wharton's Criminal Law and Procedure (1957 Ed.), Vol. 2, section 864, page 731; State v. Lustig, 13 N.J.Super. 149, 80 A.2d 309. This assignment of error is overruled.

The defendants assign as error the failure of the trial court to sustain their motions for judgment as of nonsuit at the close of the State's evidence, which motions were renewed after the defendants announced they would offer no evidence.

The overwhelming weight of authority seems to be to the effect, in the absence of a statute to the contrary, that persons may assemble together for a lawful purpose, but if at any time during the meeting they act with a common intent, formed before or during the meeting, to attain a purpose which will interfere with the rights of others by committing disorderly acts in such manner as to cause sane, firm and courageous persons in the neighborhood to apprehend a breach of the peace, such meeting constitutes an unlawful assembly. See Annotation: Unlawful Assembly, 58 A.L.R. 751, and 93 A.L.R. 737, where the authorities in support of this view, from many jurisdictions, are assembled.

In the case of People v. Burman, 154 Mich. 150, 117 N.W. 589, 592, 25 L.R.A., N.S., 251, the defendants were convicted of a breach of the peace in violation of a city ordinance. The defendants had marched through the streets of the City of Hancock, Michigan, displaying red flags. They had been warned that the display of such flags would cause a breach of the peace and riots. The Court, in upholding the convictions, said: 'The question here is not whether the defendants have in general a right to parade with a red flag. It is this: Had they such right, when they knew that the natural and inevitable consequence was to create riot and disorder? Defendants knew this red flag was hated by those to whom it was displayed, because it was believed to represent sentiments detestable to every lover of our form of government. They knew that it would excite fears and apprehension, and that by displaying it they would provoke violence and disorder. Their right to display a red flag was subordinate to the right of the public. They had no right to display it when the natural and inevitable consequence was to destroy the public peace and tranquillity. It is idle to say that the public peace and tranquillity was disturbed by the noise and violence, not of the defendants, but of those whose sentiments they offended. When defendants deliberately and knowingly offended that sentiment, they were responsible for the consequences which followed, and which they knew would follow. It is also idle to say that these others were wrongdoers in manifesting in the manner they did their resentment at defendants' conduct. This merely proves that they and defendants were joint wrongdoers; that they, as well as defendants, violated the ordinance in question. The object of this proceeding is not to redress the grievance of these other wrongdoers, but it is to redress the grievance of the public whose rights they and defendants jointly invaded. The guilt of their associate wrongdoers does not lessen defendants' responsibility. It is sufficient to say that defendants by their conduct did 'aid, countenance, and assist in making a riot, noise, and disturbance, and therefore violated ordinance No. 10 of the city of Hancock."

In the case before us, the evidence supports the view that the so-called Knights of the Ku Klux Klan, under the leadership, control and direction of the defendant Cole, did by inflammatory speeches and crossburnings, and reports thereof published in the newspapers, incense the Indians of Robeson County to such an extent that the proposed rally at Maxton would tend to provoke a breach of the peace and incite to riot. In fact, Cole was so advised before and after the rally was underway. Moreover, Cole and Martin knew that the purpose of the rally was to incense, intimidate, and scare the indians. There is evidence to the effect that when Sheriff McLeod arrived at the scene of the planned rally on Saturday night, 18 January 1958, he advised Cole not to try to hold the rally; that Cole said 'he couldn't see any reason why he should not hold it, but would tone it down some.' This we think is tantamount to an admission by Cole that he originally intended to make statements that would be resented by the Indians and likely to cause them to riot. Otherwise, why 'tone it down'? As to Martin, according to the evidence admitted against him, Cole had told him about a week or two before the Maxton rally that there were about 30,000 half-breeds in Robeson County and he was going to have a meeting and try to 'scare them up.' Therefore, it is evident that Martin knew the purpose of this particular meeting.

In light of the evidence disclosed on the record on this appeal, there can be no justification for the defendants and their associates to go to the rally at Maxton on 18 January 1958, armed with rifles, shotguns, pistols and other weapons, some concealed and others unconcealed, if their intent and purposes were legitimate and peaceful....