State v. Winkels

• Decision Date: 10 February 1939
• Docket Number: No. 31925.,31925.
• Citation: 204 Minn. 466,283 N.W. 763
• Parties: STATE v. WINKELS et al.
• Court: Minnesota Supreme Court

283 N.W. 763

204 Minn. 466

STATE v.WINKELS et al.

No. 31925.

Supreme Court of Minnesota.

February 10, 1939.

Appeal from District Court, Mower County; D. M. Cameron, Judge.

John Winkels was convicted of the crime of riot and he appeals.

Affirmed.

C. J. Laurisch and Josiah A. Baker, both of Mankato, for appellant.

William S. Ervin, Atty. Gen., Roy C. Frank, Asst. Atty. Gen., and A. C. Richardson, Co. Atty., of Austin, for the State.

GALLAGHER, Chief Justice.

In an information filed by the county attorney of Mower county, defendant and three others were charged with the crime of "riot" as defined by 2 MasonMinn.St. 1927, § 10280.Tried separately, defendant was convicted and appeals from an order denying his motion for a new trial.

At the time involved, Montgomery Ward and Company operated a retail store in Austin.A local union was endeavoring to unionize its employees.On Saturday, April 9, 1938, a large number of people assembled around the store and several of them entered.Some damage was done.As a result, the store was closed about four o'clock in the afternoon.The crowd then dispersed.The following Monday forenoon the store was picketed by ten or fifteen pickets.It did business as usual during the forenoon.About one o'clock a crowd began to assemble in front of the store and by two o'clock it had reached sizeable proportions.The sheriff and a number of police officers came to the scene and stationed themselves in the building in an effort to prevent a recurrence of the incidents of the previous Saturday.About two o'clock some forty or fifty men, over the protests of the officers, forced their way into the building.They were followed by others until those in the building numbered approximately two hundred.They remained there until about four p. m. when they were induced to leave through the efforts of the mayor and a representative of the governor who was sent to the scene of the trouble.

The main questions in the case are: Do the facts reasonably inferable from the evidence constitute "riot" within the meaning of 2 MasonMinn.St.1927, § 10280, and, if so, is the evidence sufficient to sustain a finding that defendant participated therein?Other minor questions are raised.They require and will receive only passing attention.

1. 2 MasonMinn.St.1927, § 10280, defines "riot".It provides: "Whenever three or more persons, having assembled for any purpose, shall disturb the public peace by using force or violence to any other person or to property, or shall threaten or attempt to commit such disturbance, or to do an unlawful act by the use of force or violence, accompanied with the power of immediate execution of such threat or attempt, they shall be guilty of a riot."

The essential elements of the crime as defined by the statute are: (a) An assemblage of three or more persons for any purpose, (b) use of force or violence against property or persons, or in the alternative, an attempt or threat to use force or violence or do any other unlawful act coupled with the power of immediate execution and (c) a resulting disturbance of the public peace.

The public peace means that tranquility enjoyed by a community when good order reigns amongst its members.Town of Neola v. Reichart, 131 Iowa 492, 494, 109 N.W. 5;City of Corvallis v. Carlile, 10 Or. 139, 142, 45 Am.Rep. 134;State v. Benedict, 11 Vt. 236, 239, 34 Am.Dec. 688.

In a prosecution for riot common purpose can be inferred from the circumstances and the acts committed.State v. Mizis, 48 Or. 165, 85 P. 611, 86 P. 361;Walker v. State, 17 Ga.App. 525, 87 S.E. 711.

A person may be convicted for riot even though not actively engaged therein when such person was present and ready to give support, if necessary.Commonwealth v. Frishman, 235 Mass. 449, 126 N.E. 838, 9 A.L.R. 549;Bolin v. State, 193 Ind. 302, 139 N.E. 659;State v. Straw, 33 Me. 554;Green v. State, 109 Ga. 536, 35 S.E. 97.

Examination of the record reveals ample evidence to prove all of the essential elements of the crime of riot.A crowd commencing with 40 or 50 people and increasing to about 200 congregated in front of the Montgomery Ward and Company store and later forcibly entered the building.What occurred is described by some of the witnesses for the state.Sheriff Syck testified:

"Q.Go on and tell us, if you will, please, what took place from that time on.A.Well, as time went on the crowd got larger in front of the store, and in the doorway, and about two o'clock they started to come in the store, a large crowd of men.

"Q.Tell us how it looked to you now as they started coming in.A.Well, there was about forty or fifty, I should judge, fifty or such a matter came in first when I called to them to stop.

"Q.What did you tell them, Mr. Syck?A.I told them they had been violating the law; that there had been damage done in the store Saturday, and they were not to come in.

"Q.Was there any remarks from the crowd to you?A.There was, yes.

"Q.Tell us what was said.A.They said, we will get out when you close the store; we want the store closed after the clerks get out.

"Q.Anything else?A.Well — "Q.Go on and tell us.A.Yes, there was quite a bit of conversation there.They said — I can't tell exactly word for word what they said but someone in back was saying, `Go on in,' and there were some in the crowd that said, `Let's go,' and I told them they were not coming in, and threatened to throw some tear gas, and they stood there for probably ten minutes or such a matter, and I had word that the back door was blocked or locked, and I went back to telephone — I was either called to the telephone, or I telephoned at that time; that telephone was in the back part of the store, and while I was at the telephone, the crowd had edged their way into the store more, and had got pretty well down through the store then.

"Q.Tellus about this back door, what you know about that.A.Well, I can't tell you a great deal about it except it was locked from the outside.I couldn't say who locked it.There was one police officer upstairs, and there was what they called a fire door.I believe he was up there and had that door open.That was the only exit from the rear of the store.

"Q.Was that rear door, was that unlocked too?A.Well, it was on the start, yes.

"Q.Was it unlocked later while the crowd was there?A.It was unlocked but who unlocked it, I don't know.

"Q.Go on and tell us what occurred after the crowd got in there, after you completed the telephone call.Point out on the plat about where the crowd was when you finished your telephone call.A.They were pretty well all through this part of the store here.As a matter of fact, I was talking to you, I guess that was who I called that time, and I tried to have them leave the store then, and they kept coming through the different aisles until they were back down near this stairway going to the balcony.Of course, the store was pretty well filled then."

Clair Murphy, an employe of the store and a witness of the state, described the situation in the following language:

"A.Well, just prior to the crowd coming in, there was a large group of men kept gathering outside, kept getting larger and larger, and kept pressing more and more up into the vestibule of the store, shutting out the possibilities of anyone getting through there except this crowd, and there was a policeman stationed there who kept the women and children from going inside, and allowed these men to pack their way in there, allowing no women and children in there at all, and they kept ganging up and ganging up, and here, as far as I could see, was nothing but men, and they seemed to be waiting for someone, or something; they didn't start right in at once; they waited until they got a whole gang of them out there, and then they all started pressing in, and they started coming in on this side, and on this side,...