State v. Soloman

• Decision Date: 23 August 1937
• Docket Number: 5829
• Court: Utah Supreme Court
• Parties: STATE v. SOLOMAN et al

71 P.2d 104

93 Utah 70

STATE v. SOLOMAN et al

No. 5829

Supreme Court of Utah

August 23, 1937

Appeal from District Court, Third District, Salt Lake County; Allen G. Thurman, Judge.

Ralph Solomon, James Woolman, W. D. Allen, George Shay, Frank Martin, Dave Sinclair, Orson Shelley, and John Doe Smith were convicted of riot, and they appeal.

REVERSED AND REMANDED.

Harry G. Metos, of Salt Lake City, for appellants.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

FOLLAND Chief Justice. HANSON, MOFFAT, and LARSON, JJ., WOLFE Justice, concurring.

OPINION

FOLLAND, Chief Justice.

Defendants Ralph Solomon, James Woolman, W. D. Allen, Dave Sinclair, and Orson Shelley were convicted of riot and appeal. On August 21, 1935, a short time before the hour of 10 a. m., a group of unemployed men and women met at the Salt Lake County Emergency Relief Administration headquarters in Salt Lake City, Utah. A committee of ten persons representing different sections of the county had been selected to meet the person at the head of the relief administration and to present a protest against a recent cut in the amount of money allocated to the unemployed. Word was taken to the administrator that a committee of ten was desirous of waiting on him. He thereupon sent word back that he would receive a committee of five but not of ten. The persons on the outside of the building held a meeting in which they discussed the matter and there is some evidence that the committee was reduced to eight. At any rate, a reduction to five was not made. The committee and many of its supporters then went into the building and immediately thereafter the doors were closed and there was a great deal of scuffling and use of sticks and clubs between the unemployed, on the one side, and police and sheriff's officers and relief administration employees on the other. The relief administration people were fully aware that a demonstration would be made by the unemployed because handbills had been previously circulated to that effect. The police and sheriff's officers had been informed of this and a number of officers were present in the administration building. The evidence of the State tended to show that the committee and its supporters commenced the use of force and violence by forcing their way into the building, by pushing aside and striking the persons therein, and by throwing of missiles against the windows and doors breaking them. The testimony of defendants tended to show that the committee was firm but peaceful in its demands and that force was first used by the officers of the law.

The assignments of error present four questions: (1) Status of the bill of particulars under the new short-form information law; that is, must it be read to the jury as part of the information; (2) what, if any, offenses are necessarily included in the charge of riot; (3) rulings on the admission and exclusion of evidence; and (4) whether certain statements of the court and the district attorney were prejudicial.

At the trial, after the jury was impaneled, the court directed the clerk to read the information and state the defendants' pleas to the jury. This was done. The defendants requested the court to direct the clerk to read the bill of particulars to the jury as part of the information. The court refused so to do and this is assigned as error. The statute in 1935, by amendment to the code of criminal procedure, provided for the so-called short-form of information or indictment. Section 105-21-6, Rev. St. Utah 1933, as amended by chapter 118, Laws Utah 1935. Section 105-21-8, (as amended by Laws 1935, c. 118) reads:

"(1) The information or indictment may charge, and is valid and sufficient if it charges the offense for which the defendant is being prosecuted in one or more of the following ways:

"(a) By using the name given to the offense by the common law or by a statute.

"(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.

"(2) The information or indictment may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such information or indictment regard shall be had to such reference."

The crime of riot is defined by section 103-50-2, Rev. St. 1933, as follows:

"Any use of force or violence disturbing the public peace, or any threat to use such force or violence, if accompanied by immediate power of execution, by two or more persons acting together and without authority of law is a riot."

The information in this case charged the crime as follows:

"That the said Ralph Solomon, James Woolman, W. D. Allen, George Shay, Frank Martin, Dave Sinclair, Orson Shelley, John Doe Smith, on the 21st day of August, A. D. 1935, at the County of Salt Lake, State of Utah, acting together and concertedly, did without authority of law, willfully, unlawfully, and feloniously use and threaten to use force and violence in disturbing the public peace, said threat being then and there accompanied by immediate power of execution. * * *"

The information was fully as complete as required by the statute. The language used in the information included all elements of the crime so that each defendant was fully informed as to the "nature and cause of the accusation against him," as required by the Constitution, art. 1, § 12.

Under the amended statute, the court must order the district attorney to deliver to the defendant, and to file, a bill of particulars where one is demanded and is necessary for certain purposes. The statute (Rev. St. 1933, 105-21-9, as amended by Laws 1935, c. 118) provides:

"(1) When an information or indictment charges an offense in accordance with the provisions of section 105-21-8, but fails to inform the defendant of the particulars of the offense, sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, the court may, of its own motion, and shall at the request of the defendant, order the prosecuting attorney to furnish a bill of particulars containing such information as may be necessary for these purposes; or the prosecuting attorney may of his own motion furnish such bill of particulars.

"(2) When the court deems it to be in the interest of justice that facts not set out in the information or indictment or in any previous bill of particulars should be furnished to the defendant, it may order the prosecuting attorney to furnish a bill of particulars containing such facts. In determining whether such facts and, if so, what facts, should be so furnished, the court shall consider the whole record and the entire course of the proceedings against the defendant.

"(3) Supplemental bills of particulars or a new bill may be ordered by the court or furnished voluntarily under the conditions above stated.

"(4) Each supplemental bill shall operate to amend any and all previous bills and a new bill shall supersede any previous bill.

"(5) When any bill of particulars is furnished it shall be filed of record and a copy of such bill be given to the defendant."

The granting of the bill of particulars is not discretionary with the court as it was at common law, but is a right which the defendant can demand and which the court must grant if the statutory conditions are present. It is the contention of defendants that the bill of particulars is in substance, a part of the information since it supplied certain particulars with respect to the crime charged which had not been stated in the information. The bill of particulars in this case was as follows:

"That the above named defendants, and each of them, on the 21st day of August, 1935, at approximately the hour of 10 o'clock a. m., assembled in the vicinity of that certain building in which the Salt Lake County Emergency Relief Administration offices are located, the address being 2236 Highland Drive, Salt Lake City, Salt Lake County, State of Utah.

"That said defendants, together with William Smith and James Solomon, and divers other persons whose names are unknown at said time and place did then and there disturb the public peace, in that they did use and engage in threatening and boisterous language and conduct, and did by means of force and violence break and enter said building, and did then and there by the use of hands, fists, feet, rocks, bricks, and clubs, bear and batter police officers of Salt Lake City Corporation, deputy sheriffs of Salt Lake County, and employees of the Salt Lake County Emergency Relief Administration who were then and there lawfully in and about said building."

We think it is apparent that the Legislature intended that the bill of particulars should be something distinct from and not subject to the same strict rules as apply to an information or indictment. The bill was to become part of the record (section 105-21-9, subsec. 5, as amended by Laws 1935, c. 118), but not necessarily a part of the information. The chief purpose in prescribing a short-form information was to get away entirely from the needless formalism and verbosity usual in criminal pleadings and the consequent reversals by courts on so-called technical grounds. The pleader had been too often held to strict nicety in stating the elements of the crime and the particulars thereof. The Legislature further intended to fully safeguard the rights of defendants by providing that the court shall direct the filing of a bill of particulars where the information does not give the defendant the...