State v. Stephanus

• Decision Date: 02 February 1909
• Citation: 53 Or. 135,99 P. 428
• Parties: STATE v. STEPHANUS et al.
• Court: Oregon Supreme Court

99 P. 428

53 Or. 135

STATE v. STEPHANUS et al.

Supreme Court of Oregon

February 2, 1909

Appeal from Circuit Court, Union County; J.W. Knowles, Judge.

Nick Stephanus and others were convicted of an "unlawful assembly," and they appealed. Reversed, and judgment directed for defendants.

The defendants were tried under an indictment charging them with riot, but convicted of an "unlawful assembly," the indictment, omitting formal parts, being as follows "The said George Kolias, Nick Stephanus, Nick Baggles and Harry Barlas on the 9th day of October, 1908, in the county of Union and state of Oregon, did then and there, and acting together, unlawfully, feloniously, and riotously assemble and gather together to disturb the public peace and, being so assembled and gathered together, did unlawfully and riotously, and without authority of law, and in a manner adapted to disturb the public peace and excite public alarm and then and there arming themselves with dangerous weapons, to wit, loaded guns, club, and rocks, make an assault with said dangerous weapons upon George Hamilton, by then and there attempting to strike, shoot, and kill him, the said George Hamilton, with said unlawful weapons, the said attempt being then and there accompanied by the immediate power of execution, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon." The court submitted to the jury written interrogatories, the answers to which, accompanied by the verdict, omitting formal parts, are as follows: "Q. Did the defendants, or either of them, carry or have at the time and place named in the indictment, any kind of dangerous weapon? A. Yes. Q. What defendant, or defendants, had such dangerous weapon? A. Harry Barlas. We, the jury in the above-entitled action find the defendants, Nick Stephanus, Nick Baggles, and Harry Barlas guilty of an unlawful assembly. [ Signed] S.M. Haynes, Foreman." A motion was interposed to set aside the verdict and special findings, and for a judgment notwithstanding the verdict, and asking that the defendants be discharged from custody for the reason that the indictment does not charge any crime or misdemeanor, except a riot, of which charge the defendants by the verdict had been acquitted, further specifying that the "unlawful assembly", of which defendants had been convicted, was not a crime or misdemeanor under the Code. The motion was overruled, and the accused sentenced to pay a fine, and in default of payment thereof, to serve a term in the county jail; hence this appeal.

Ramsey & Oliver, for appellants.

F.S. Ivanhoe, Dist. Atty., for the State.

KING C. (after stating the facts as above).

The points presented for determination are: (1) Is the verdict sufficient to sustain a judgment of conviction of riot under sections 1913 and 1914 of the Code (B. & C. Comp.)? (2) If not sufficient for that purpose, does the verdict acquit defendants of the charge contained in the indictment? Section 1913 of the Code (B. & C. Comp.) is as follows: "Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law, is riot. Whenever three or more persons assemble with intent, or with means and preparations, to do an unlawful act, which would be riot if actually committed, but do not act towards the commission thereof, or whenever such persons assemble without authority of law, and in such manner as is adapted to disturb the public peace or excite public alarm, or disguised in a manner to prevent them from being identified, such an assembly is an unlawful assembly." The next section provides, in substance, that if any person shall be found guilty of participating in any riot, such person shall be punished in the manner therein specified. No provision is made for punishment of any person participating in an "unlawful assembly," nor is such assembly by the statute declared to be a crime or misdemeanor. It will be observed that the section of the statute quoted clearly defines and distinguishes an unlawful assembly from riot, which distinction is practically the same as that recognized at common law, the distinguishing features of which are stated in 29 Am. & Eng.Ency.Law (2d Ed.) 342, as follows: "If the parties assemble in a tumultuous manner, and actually execute their purpose with violence, it is a riot; but, if they merely meet on a purpose which, if executed, would make them rioters, and having done nothing, they separate without carrying their purpose into effect, it is an unlawful assembly." While, where not defined by statute, we may look to the common law for a definition of the offense, we must always look to our Code to determine whether the act committed constitutes a crime. This rule has been well settled and needs no elucidation at our hands. State v. Vowels, 4 Or. 324; State v. Ayre, 49 Or. 61, 66, 88 P. 653, 10 L.R.A. (N.S.) 992. It will be observed from section 1913 that the Code defines "unlawful assembly," but does not there, nor elsewhere, declare a participation therein, when not accompanied by violence, to be a misdemeanor or crime, and affixes no penalty therefor. It follows that an assemblage of persons, unaccompanied by any acts such as would bring it within the charge of riot, as defined by our Code, is not a crime under our statute. ...