State v. Inselburg

• Decision Date: 31 December 1974
• Docket Number: No. 6974,6974
• Citation: 330 A.2d 457,114 N.H. 824
• Parties: STATE of New Hampshire v. Joseph W. INSELBURG et al.
• Court: New Hampshire Supreme Court

Page 457

330 A.2d 457

114 N.H. 824

STATE of New Hampshire v. Joseph W. INSELBURG et al.

No. 6974.

Supreme Court of New Hampshire.

Dec. 31, 1974.

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State.

William S. Orcutt, chief legal counsel, New Hampshire Civ. Liberties Union, orally and by brief, for defendants.

KENISON, Chief Justice.

These are appeals by seventeen defendants from convictions for refusal to withdraw from mob action. RSA 609-A:4 (Supp.1972) (repealed Nov. 1, 1973). All of the cases were tried before the court except State v. Lamperti, No. 4007, which was tried by jury. Defendants moved to quash the complaints, claiming that the complaints failed to apprise them of the crime which they allegedly committed. Defendants also moved to set aside the verdict on the grounds that there was no evidence showing that they were assembled for the specific purpose of committing a crime in concert. Loughlin, J., reserved and transferred defendants' exceptions to the denial of these motions. The questions to be resolved by us are whether the complaints adequately apprised the defendants of the nature of the alleged offenses and whether sufficient evidence exists in the record to support the convictions.

The convictions were based on four separate incidents that occurred in 1972 in Hanover and in Lebanon which involved demonstrations protesting the federal government's escalation of the conflict in South-east Asia. Early on the morning of May 11, a large group of demonstrators congregated in front of the Cold Regions Research and Engineering Laboratory (CRREL) located on Route 10 in Hanover, the only installation of the United States government in the town. Some of the demonstrators were walking in front of the building carrying placards protesting the war. Others were blocking the driveway to the building's parking lot with the result that about fifty cars belonging to employees of CRREL were parked on the shoulder of Route 10.

Upon arrival at the scene, Roland M. Lee, chief of the Hanover police, repeatedly warned the group of demonstrators that although they could demonstrate, they could not prevent access to the CRREL parking lot. Chief Lee told the group that they had to clear the driveway in five minutes or be arrested. After waiting more than the time allotted, Chief Lee admonished the group once again and then began making arrests. As the police removed one demonstrator from the driveway another replaced him so that thirty-one arrests were required in order to open the driveway to traffic. The demeanor of the demonstrators was peaceful and orderly at all times. Of the thirty-one arrests, seven convictions are involved in this transferred case.

About 6 a.m. on May 15, demonstrators congregated in the area of West Park Street, the location of Lebanon's Selective Service Office and the place of departure for the bus which carried inductees to Manchester for their physical examinations. After the bus had arrived and as the inductees boarded it, some of the demonstrators seated themselves in a semicircle around the front of the bus, thereby impeding the passage of the bus. The police who had been observing the incident formed a line between the bus and the demonstrators and advised them that if they did not move, they would be arrested and physically removed. After a five-minute wait and after additional warnings, the demonstrators who blocked the way of the bus were arrested. The demonstrators behaved peacefully and in an orderly manner. Subsantially similar events occurred at West Park Street in Lebanon on the mornings of July 13 and August 10. Of the numerous arrests made as a result of the three incidents, ten individuals contest their convictions in this transferred case (seven on May 15, two on July 13, one on August 10). Three of the ten are also appellants with regard to the incident that occurred in Hanover on May 11.

RSA 609-A:4 (Supp.1972) made it a crime for any person present during mob action, whether a participant or not, to fail to withdraw on being ordered to do so by a police officer. RSA 609-A:1 II defined mob action as the assembly of two or more persons to do an unlawful act. In State v. Albers, 113 N.H. 132, 139, 303 A.2d 197, 202 (1973), we construed RSA 609-A:1 II as limited to proscribing gatherings assembled for the specific purpose of imminently committing a crime in concert. The merits of defendants' exceptions must be tested by the terms of these provisions.

I. Sufficiency of the Complaints

Defendants contend that the complaints are defective because they did not apprise them of the crime which they allegedly committed. Part I, article 15 of the New Hampshire constitution provides that '(N)o subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him. . . .' To meet this constitutional standard it is a rule of long standing in this State that a complaint must inform the defendant of the offense for which he is charged with sufficient specificity so that he knows what he must be prepared to meet and so that he is protected from being put in jeopardy once again for the same offense. State v. Hoyt, 114 N.H. 256, 258, 319 A.2d 286, 286 (1974); State v. Greenwood, 113 N.H. 625, 626, 312 A.2d 695, 696 (1973); State v. Strescino, 106 N.H. 554, 557, 215 A.2d 706, 708 (1965); State v. Rousten, 84 N.H. 140, 143, 146 A. 870 (1929); 4 F. Wharton, Criminal Law and Procedure § 1762 (1957). Where a statutory offense is involved, as in this case, it is not sufficient merely to quote the language of the statute unless the statutory wording clearly sets out all of the necessary elements constituting the offense. State v. Sullivan, 101 N.H. 429, 432, 146 A.2d 1, 4 (1958); 4 F. Wharton, Criminal Law and Procedure § 1797 (1957).

Judged by these standards the seven amended complaints for the Hanover incident are sufficient. These complaints specified that on May 11, at 8.20 a.m., each named defendant committed 'the offense of refusal to withdraw contrary to RSA 609-A:4 . . . in that defendant was present during a mob action to wit a protest demonstration which constituted an assembly of two or more persons to do unlawful acts, namely to violate RSA 570:1, RSA 570:2 and RSA 572:35 at the entrance to CRREL located on the Lyme Road in Hanover, New Hampshire and did then and there refuse to withdraw from said entrance on being commanded to do so by a police officer.' On the basis of the complaints there was no doubt as to the time, place or nature of the statutory violation. The complaints were sufficiently particular to inform defendants of what they should be prepared to meet. From the complaints defendants knew that their refusal to withdraw from the entrance to CRREL was the offending act and that that act was unlawful under specific statutory prohibitions.

Of the ten complaints arising from the incidents that occurred in Lebanon, three stated that at specified date and time on West Park Street each named defendant committed 'the offense of refusal to withdraw contrary to 609-A:4 . . . in that defendant did assemble with another person . . . to do an unlawful act, to wit engage in disorderly conduct in wantonly impeding the public way being used by a Vermont Transit Bus, and did, when requested by Chief Neal Wooley, refuse to withdraw from the public way . . ..' Based on the information in these three complaints the defendants had sufficient data to prepare a defense. In addition to the date and place of the offense, the defendants were apprised of what their allegedly unlawful behavior was (i.e., blocking the public way of a bus) and that their refusal to refrain from that behavior allegedly violated RSA 609-A:4.

The remaining seven complaints stemming from the Lebanon incident which occurred on May 15 merely stated that at a specified date and time the named defendants committed 'the offense of refusal to withdraw contrary to RSA 609-A:4 . . . in that defendant was present during a mob action to wit a protest demonstration on West Park Street in Lebanon and did then and there refuse to withdraw from said place upon the request of a Police Officer . . ..' Since the complaints did not indicate what unlawful act defendants allegedly committed, these seven defendants did not know in what way they had violated RSA 609-A:1 II. State v. Sullivan, 101 N.H. 429, 432, 146 A.2d 1, 4 (1958). An orderly protest demonstration is not an unlawful act nor is it unlawful to assemble peaceably on public property to petition the government. State v. Albers, 113 N.H. 132, 136, 303 A.2d 197, 201 (1973). See generally Gunther, Cases and Materials on Constitutional Law, 1139-41 (1970); Kalven, The Concept of a Public Forum: Cox v. Louisiana, 1965 S.Ct.Rev. 1. The use of the statutory language of RSA 609-A:4 (i.e. 'refusal to withdraw from mob action') in the complaint does not help to clarify the obscurity surrounding what unlawful behavior defen...