State v. Foster

• Decision Date: 01 February 1921
• Docket Number: No. 1690.,1690.
• Citation: 113 A. 211
• Parties: STATE v. FOSTER.
• Court: New Hampshire Supreme Court

113 A. 211

STATE

v. FOSTER.

No. 1690.

Supreme Court of New Hampshire. Rockingham.

Feb. 1, 1921.

Transferred from Superior Court, Rockingham County; Sawyer, Judge.

Augustus Foster was found guilty by the jury of interfering with persons on their way to their lawful business. Case transferred on his exceptions. Exceptions overruled.

Indictment alleging:

"That Augustus Foster, of Haverhill, in the county of Essex and commonwealth of Massachusetts, on or about the 18th day of October in the year of our Lord one thousand nine hundred and nineteen, at Raymond, in the county of Rockingham, aforesaid, with force and arms, when the public streets of said Raymond were frequented by disorderly and riotous persons who were threatening to commit and committing assaults upon peaceful citizens then and there passing, by willfully making an assault upon one Dana W. Bowers, who was then and there a duly authorized police officer of said town of Raymond, and by violently kicking the said Dana W. Bowers upon and about the face, and by pointing out to said disorderly and riotous persons certain workmen, to wit, one Charles Anderson, one Whalen D. Smart, one Simeon Lambert, and others, who were then and there on the way to their lawful business, to wit, to perform their contracts of hire as employees of Chase, Chamberlain & Company, a business organization engaged at said Raymond in the manufacture of shoes, in order that said disorderly and riotous persons should interfere with said workmen, to injure them in their several persons while on their way to their lawful business aforesaid, thereby, in manner aforesaid, did unlawfully assist in the doing of acts which tended to urge, incite and encourage the violation of certain laws of the said state of New Hampshire, to wit, the violation of chapter 206, section 12, of the Public Statutes, as amended by section 1, chapter 211, of the Session Laws of 1913."

Plea not guilty. Trial by jury and verdict of guilty.

The defendant moved that the indictment he quashed, on the ground that there are several distinct and independent offenses alleged. At the close of the evidence counsel for the defendant made the following motion:

"The respondent moves that the indictment be quashed without further reason than that it does not describe any offense under the statute referred to as having been committed."

Both motions were denied, and the defendant excepted. The defendant excepted to the following statement of the solicitor in argument:

"Those three witnesses, unfortunately for the defendant, happened to be in their houses and saw that thing happen. They are good reliable witnesses. Dana W. Bowers knows who kicked him. It was that defendant that kicked him; the other day they said the Lyman boy— possibly he couldn't get away or something— to-day they brought him down, and come to find out he didn't see the assault at all; I guess that is why he wasn't brought down the other day. They thought they were at a point where they could bring him, and he said he didn't see the assault. And the fellow was convicted last term. He didn't have an interest, only convicted of assault. They couldn't bring him in on their shirt sleeve—" Exceptions to the admission and exclusion of evidence are stated in the opinion.

William H. Sleeper, Co. Sol., of Exeter, for the State.

Doyle & Doyle and Paul J. Doyle, all of Nashua, for defendant.

PEASLEE, J. The charge here made is doing acts tending to incite others to interfere unlawfully with persons upon their way to their lawful business. Laws 1913, c. 211; Laws 1919, c. 155, § 2. The acts specified are, first, an assault upon a police officer; and, second, pointing out certain persons as employees of Chase, Chamberlain & Co., on their way to work, all while the streets were frequented by riotous persons, who were assaulting and threatening citizens, with intent to incite the rioters to interfere with said employees, do them bodily injury, and intimidate them.

Objection is made to the sufficiency of the indictment. It is claimed that the allegation of an assault upon Bowers as one of the means used by the defendant to assist in inciting unlawful intimidation is a charge of a separate and distinct offense.

"The assault set forth in the indictment is not alleged as a substantive offense, but as a specific statement of the manner in which the respondents attempted to prevent Butler from voting." State v. Hardy, 47 N. H. 538.

The further objection that the indictment does not charge any offense is clearly untenable. As before stated, it alleges that the defendant did certain specified acts, and that thereby he assisted in doing acts with the intent to incite others to violate a specified criminal statute. If these facts were proved, the conclusion of guilt would follow as matter of law. The indictment was sufficient, and the motions to quash were properly denied. The question raised by the state, whether the motions came too late, has not been considered. Assuming that they were made seasonably, the defendant takes nothing by them.

The statute makes it a crime to do or to assist in doing certain acts. Laws 1919, c. 155, § 2. As the indictment alleges assistance only, it is said that there was error in convicting the defendant of doing rather than assisting. The record does not present this question. Whether there was a variance between the indictment and the proof is a matter about which no question appears to have been raised at the trial.

The state was permitted to show that 10 days before the happening of the events set out in the indictment, the defendant, in urging certain foremen to quit work for Chase, Chamberlain & Co., said the contest was an important one; that "we are going to get Chase & Chamberlain into the union or we will shut them up." One element of the crime charged was the intent to promote interference with the...