State v. Elliston, 52809

• Decision Date: 11 June 1968
• Docket Number: No. 52809,52809
• Citation: 159 N.W.2d 503
• Parties: STATE of Iowa, Appellee, v. Marvin D. ELLISTON, Appellant.
• Court: Iowa Supreme Court

Page 503

159 N.W.2d 503

STATE of Iowa, Appellee, v. Marvin D. ELLISTON, Appellant.

No. 52809.

Supreme Court of Iowa.

June 11, 1968.

Edmund Eugene Fleming, Brian M. Olmstead, and William L. Kutmus, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Ray A Fenton, County Atty., Des Monies, for appellee.

MOORE, Justice.

On July 3, 1967 an information was filed in Des Moines Municipal Court charging defendant, Marvin D. Elliston, with unlawful assembly in violation of Code section 743.1. Subsequent to a plea of not guilty trial was set for July 19, 1967. On trial to the court he was found guilty and sentenced to serve five days in jail or pay a $50 fine. He has appealed.

Defendant-appellant asserts the trial court erred in denying his motion for dismissal on the grounds of insufficient evidence, overruling his demurrer, refusing a continuance and refusing his demand made on July 19 for a jury trial.

Section 743.1 provides: 'Unlawful assembly. When three or more persons in a violent or tumultuous manner assemble together to do an unlawful act, or, when together, attempt to do an act, whether lawful or unlawful, in an unlawful, violent, or tumultuous manner, to the disturbance of others, they are guilty of an unlawful assembly, and shall be imprisoned in the county jail not more than thirty days, or be fined not exceeding one hundred dollars.'

I. In considering a claim of insufficient evidence we view the evidence in the light most favorable to the State. It is the fact-finder's function, not ours, to decide disputed questions of fact and to draw permissible inferences therefrom. The trial court's findings are binding upon us unless we are satisfied they are without substantial support in the evidence or clearly against the weight thereof. State v. Wesson, 260 Iowa 331, 149 N.W.2d 190, 192; State v. Steger, 259 Iowa 1147, 147 N.W.2d 45, 46; State v. Greer, 259 Iowa 367, 144 N.W.2d 322, 325; State v. Stodola, 257 Iowa 863, 865, 866, 134 N.W.2d 920, 921.

The record discloses little factual dispute as appellant offered no evidence. In the early morning hours of Sunday, July 2, 1967 a number of Des Monies police officers were dispatched to the area of 10th and 11th on Center Street to quell a loud and riotous disturbance. They there found 75 to 100 people milling about the area and six were engaged in a fight. One of the fighters suffered severe lacerations.

The crowd was unruly and aggressive. Shouts of profanity and phrases such as 'get whitey', 'black power' and 'let's riot' were made and repeated. Various missiles such as bottles and rocks were hurled in all directions. Despite the efforts of many police officers to disperse the crowd and stop the disturbance, it continued for over an hour. Police officers were subjected to much abuse and rough treatment.

Officer Worthington testified he saw appellant Elliston, Larry Fountain and Marvin Williams in the crowd and 'they were hanging around and making noise, and would not disperse when told to do so. They were standing in the middle of the street blocking traffic'. A few minutes later Worthington observed Williams throw a pop bottle which struck officer Rounds on the shoulder.

After the crowd on Center Street was finally dispersed the disturbance within 15 minutes moved to 14th and University Ave., a distance of about six blocks. When the police arrived there they found many of the same persons, including Elliston, Fountain and Williams. The officers observed some one had thrown the Sunday morning papers in the middle of the street. Signs from a nearby car wash were also in the street. Shouting and hollering continued. Missiles were again thrown. One of the squad cars was struck by thrown bricks. The crowd was estimated at 30 to 40 persons.

Members of the Community Action Council joined the police in an effort to disperse the crowd. Elliston, like others, was told by police officers to move on and leave the scene. He with Fountain at first moved away a few feet and then came back to a position near the paddy wagon. Subsequent to yet another command to Elliston and Fountain to disperse and their refusal to do so, they, along with Williams, were arrested and charged with unlawful assembly.

Appellant Elliston, Fountain, Williams and Anthony Colbert were tried together. At the conclusion of the trial the court reviewed the evidence and stated: 'Fountain and Elliston, they were told to move on. The officer gave them a chance to walk away from the place. Did they take advantage of it? No, they were there to aid and comfort their friends and continue this riot. * * * As far as the law is concerned there is no question the State has proved their case beyond a reasonable doubt as to the guilt of all four defendants.'

We are here only concerned with Elliston's appeal. Our review of the record discloses substantial support for the trial court's findings and conclusions. We do not agree with appellant's claim of insufficient evidence.

II. Immediately before trial appellant's counsel dictated into the record what he referred to as a demurrer. He therein raised the constitutionality of Code section 743.1 and sufficiency of the information. Appellant asserts the trial court erred in overruling his demurrer because, (1) the information was insufficient on its face, (2) the information violated the notice requirements of due process and (3) section 743.1 is unconstitutional. Procedural problems are not raised and we shall consider appellant's contentions without regard thereto.

The information filed against Elliston stated: 'The defendant, Marvin D. Elliston, accused of the crime of Unlawful Assembly in Viol. of Chap. 743.1 of the Code of Iowa, 1966. For that the defendant on the 2nd day July, 1967, at the City of Des Moines, in the County of Polk, State of Iowa, did unlawfully and wilfully--Assemble with more than three persons in a violent of (sic) tumultuous manner to do an unlawful act in violation of chapter 743.1 of the 1966 Code of Iowa.'

The established rule is that an indictment or county attorney's information is sufficient if it uses the name given the offense by statute and the number of the statute in the Code. State v. Craig, 252 Iowa 290, 292, 106 N.W.2d 653, 654; Meeks v. Lainson, 246 Iowa 1237, 1239, 71 N.W.2d 446, 448; State v. Johnson, 212 Iowa 1197, 1199, 237 N.W. 522, 523. This rule is applicable to informations in Municipal Court. Breeden v. Nielsen, 256 Iowa 358, 363, 127 N.W.2d 661, 664; State v. Bostwick, 244 Iowa 584, 588, 57 N.W.2d 217, 219. See also Code section 773.34.

Here the information filed in the Municipal Court used the name given the offense and set out the Code number of the statute. It also stated the date of the offense and used some of the phraseology of section 743.1. If Elliston desired further details he should have sought a bill of particulars under section 773.6. State v. Bostwick, supra; State v. Lockhart, 241 Iowa 638, 640, 39 N.W.2d 589, 590.

The short form of charge such as used here has withstood constitutional assaults in view of the provision (section 773.6) which entitles an accused to a bill of particulars. State v. Olson, 249 Iowa 536, 550, 86 N.W.2d 214, 223; State v. Keturokis, 224 Iowa 491, 497, 276 N.W. 600, 603 and citations.

We cannot agree the information was insufficient on its face or violated the notice requirements of due process.

III. Appellant argues at length the unconstitutionality of section 743.1. He asserts the statute is so broad as to include within the scope of prohibition constitutionally protected rights of free speech and assembly, that it violates the due process requirements of adequate notice, subjects citizens to arbitrary and indiscriminate application based on the whims and caprice of individual law enforcement officers and it licenses the trier of fact to establish his own standard of guilt. We do not read the statute as subject to any of these constitutional infractions.

Appellant challenges the meaning of nearly every word and phrase of section 743.1 while posing varying hypothetical situations wherein innocent people could possibly be subjected to arrest under the statute. Included are examples of three or more children skating in the street, three people arguing violently on a street corner, people evincing passionate disagreement at a political rally, or public excitement attendant upon a parade. Such situations are cited no doubt to highlight the purported overbreadth of the statute in stifling free speech and assembly. We are not persuaded such groups are included within the statutory prohibition unless assembled to do an unlawful act or when together attempt to do an act in an unlawful, violent or tumultuous manner.

In American Communications Asso., CIO v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 691, 94 L.Ed. 925, 951, the Supreme Court, when faced with similar contentions, said: 'The argument as to vagueness stresses the breadth of such terms as 'affiliated,' 'supports' and 'illegal or unconstitutional methods.' There is little doubt that imagination can conjure hypothetical cases in which the meaning of these terms will be in nice question. The applicable standard, however, is not one of wholly consistent academic definition of abstract terms. It is, rather, the practical criterion of fair notice to those to whom the statute is directed. The particular context is all important.'

Under the Fourteenth Amendment to the United States Constitution, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 391, 40 S.Ct. 126, 70 L.Ed. 322; Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888; Winters v. People of State of New York, 333 U.S. 507, 509, 510, 68 S.Ct. 665...