State v. Lustig
| Decision Date | 18 April 1951 |
| Docket Number | No. A--404,A--404 |
| Citation | 80 A.2d 309,13 N.J.Super. 149 |
| Parties | STATE v. LUSTIG et al. |
| Court | New Jersey Superior Court — Appellate Division |
Edward Cohn, Pros. of Union County, Elizabeth, argued the cause for respondent (H. Russell Morss, Jr., First Asst. Pros., Elizabeth, attorney).
Morton Stavis, Newark, argued the cause for appellants.
Before Judges EASTWOOD, BIGELOW and FREUND.
The opinion of the court was delivered by
BIGELOW, J.A.D.
This is an appeal (by leave granted) from the denial of a motion to dismiss an indictment on the ground that the indictment fails to charge an offense. The State asserts that it charges the common law crime of incitement to a riot. The indictment in substance alleges that the appellants did unlawfully by speech and actions encourage and incite divers persons to unlawfully, riotously, and tumultuously assemble and gather together to disturb the peace of this State; and being so assembled and gathered together (the said divers persons) did then and there make great noises, riot, tumult and disturbance, and continued so to do for the space of one-half an hour and more, to the great terror and disturbance not only of the people of this State there inhabiting, etc.
The words in parenthesis are inserted by us, with the consent of the parties, in order to clarify the meaning of the indictment.
The first objection raised is that the indictment does not state the means employed or the manner in which the appellants incited the riot. The specification is unnecessary. 2 Hawkins, Pleas of the Crown, c. 29, § 17. 1 Chitty Criminal Law 171 and 272; Rex v. Fuller, 1 Bos. & Pul. 180; 126 Eng.R. 847 (C.P.1797).
Next and more serious, that the acts which appellants are charged with encouraging, are not necessarily criminal.
A riot is an unlawful assembly that has developed to the stage of violence. In State v. Butterworth, 104 N.J.L. 579, 142 A. 57, 59, 58 A.L.R. 744 (E. & A.1928), the late Justice Kalisch carefully considered what constitutes an unlawful assembly. 'At common law,' he said, But Justice Kalisch was forced to admit 'that the effort to give a satisfactory definition of what is an unlawful assembly meets with the same disappointing result as does the attempt to formulate a definition which would embrace all phases of fraud.'
A riot is a disturbance of the peace by three or more persons unlawfully assembled together and acting in a violent and tumultuous manner. Cf. 1 Hawkins, Pleas of the Crown, c. 65, § 1; 4 Blackstone Commentaries 146; Russell on Crimes (1910 ed.), 409; Wharton on Criminal Law (1932 ed.), § 1862.
Appellants contend that the indictment is fatally defective because it fails to allege that the appellants incited and encouraged three or more persons to act, or that they urged the 'divers persons' to join themselves to others so that there would be at least three participants. We consider the point well taken for it is entirely settled that one or two persons acting by themselves cannot be guilty of a riot. The precedents clearly indicate that an indictment for rioting must charge that at least three persons participated. For a common law form of indictment for unlawful assembly, see State v. Butterworth.
Every fact or circumstance which is a necessary ingredient in the offense, must be set forth in the indictment. Thus in State v. Solomon, 96 N.J.L. 124, 114 A. 354 (Sup.Ct.1...
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State v. Engels
...cannot be supplied by inference or implication. State v. DeVita, 6 N.J.Super. 344, 71 A.2d 390 (App.Div.1950); State v. Lustig, 13 N.J.Super. 149, 80 A.2d 309 (App.Div.1951). In the present case the point of criticism centers upon the use of the unelucidated word 'partner' in the count here......
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A & B Auto Stores of Jones Street, Inc. v. City of Newark
...of action, and resort must therefore be had to the common law definitions developed under the criminal law. In State v. Lustig, 13 N.J.Super. 149, 80 A.2d 309 (App.Div.1951), the Appellate Division defined a riot in the context of an indictment for the common law offense of incitement to ri......
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A & B Auto Stores of Jones Street, Inc. v. City of Newark
...a violent and tumultuous manner,' or 'an unlawful assembly that has developed to the stage of violence.' State v. Lustig, 13 N.J.Super. 149, 151, 152, 80 A.2d 309, 310 (App.Div.1951). Inherent in the commission of a riot is an unlawful assembly, which in turn has been defined to be 'any gat......
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A. & B. Auto Stores of Jones Street, Inc. v. City of Newark
...peace by three or more persons unlawfully assembled together and acting in a violent and tumultuous manner.' State v. Lustig, 13 N.J.Super. 149, 152, 80 A.2d 309, 310 (App.Div.1951). For that purpose, three may suffice, for such conduct upon the part of that number may warrant punishment an......