State v. Woolman

CourtSupreme Court of Utah
Citation33 P.2d 640,84 Utah 23
Decision Date14 June 1934
Docket Number5453
PartiesSTATE v. WOOLMAN

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

James Woolman was convicted of participating in an unlawful assembly, and he appeals.

REVERSED, with directions.

Paul E Reimann, of Salt Lake City, for appellant.

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

MOFFAT Justice. ELIAS HANSEN and EPHRAIM HANSON, JJ., concur. STRAUP, Chief Justice, FOLLAND, Justice, dissenting.

OPINION

MOFFAT, Justice.

The defendant and appellant, James Woolman, and others, were accused by the information in the cause of the crime of participating in a riot. The alleged riot it is charged occurred on the 23d day of February, 1933, at the City and County building in Salt Lake City, Utah, while the sheriff of the county in pursuance of his duty was holding a sale of real property. The appellant, James Woolman, alone stood trial upon the information.

Upon the trial to a jury, the defendant was found "guilty of the crime of participating in an unlawful assembly."

The information upon which the defendant was tried sets forth that the defendant and another having been duly committed by a committing magistrate is accused by the district attorney of the crime of participating in a riot at the time and place above stated, and charges specifically that the defendant and others "on the 23rd day of February, A. D. 1933, at the County of Salt Lake, State of Utah, acting together and concertedly, and with divers other persons whose names are unknown, did without authority of law, wilfully, unlawfully, and feloniously use and threaten to use force and violence in disturbing the public peace, said threats to use force and violence being then and there accompanied by immediate power of execution and said persons acting as aforesaid among other things, did then and there, wilfully, unlawfully, feloniously, riotously, and with force and violence obstruct and prevent S. Grant Young, duly elected, qualified, and acting Sheriff of Salt Lake County, State of Utah, from performing the duties and obligations of his office incident to the conducting of a duly authorized Sheriff's Sale of Real property, and did then and there wilfully, unlawfully, and feloniously use and threaten to use force bruise, and illtreat German Dean, Charles Fernstrom, and Ray Cahoon, duly qualified peace officers of Salt Lake City, Salt Lake County, State of Utah, who were then and there acting in the line of their duty in preserving the public peace, and did then and there wilfully, unlawfully, riotously, feloniously, and with force and violence break and damage the doors leading into the office of said Sheriff S. Grant Young, said doors being located in the City and County Building, Salt Lake City, Utah, and did then and there wilfully, unlawfully, riotously, and feloniously make great noise, and did then and there threaten to cut, beat, bruise, harm, and kill the said Sheriff S. Grant Young and his deputies, said threats being then and there accompanied by immediate power of execution, and all to the terror and disturbance of the peace of the people of the State of Utah, and contrary to the provisions of the Statute of the State of Utah," etc.

The case is in this court upon the judgment roll alone.

After verdict and before judgment, defendant interposed a motion in arrest of judgment and in due time filed his motion for a new trial.

Appellant's first assignment of error goes to the question of alleged error by the trial court in denying his motion in arrest of judgment, and particularly specifies the ground upon which the motion was based as follows:

(a) That the information fails to state facts sufficient to constitute the crime of unlawful assembly of which the verdict purports to find the appellant guilty.

(b) That the commission of the crime of unlawful assembly is not necessarily included in the crime of riot as defined by the Utah statute defining riot.

(c) That it was error to instruct the jury that the crime of unlawful assembly is necessarily included in the crime of riot as defined by the Utah statutes, and was also error to permit the jury to bring in a verdict of guilty of unlawful assembly or guilty of participating in an unlawful assembly upon an information which alleges only those elements which charge the crime of riot.

The second assignment of error goes to the question raised that the court erred in denying appellant's motion for a new trial upon the ground that the verdict is contrary to law.

The third assignment attacks the validity of the verdict based upon a purported offense not expressly charged nor sufficiently alleged in the information.

The fourth assignment assails the judgment and sentence as being unconstitutional in that it deprives the appellant of his liberty without due process of law, because of his having been convicted of an alleged offense not contained in the information, and therefore no notice was given to him by the information which failed to charge the crime of which he was convicted.

Manifestly the errors complained of by assignments Nos. 3 and 4 are subsidiary questions to those raised by assignments Nos. 1 and 2, and, while there is a clear distinction to be drawn between assignment No. 3 and assignments Nos. 1 and 2, in that assignment No. 3 attacks the sufficiency of the information to charge the crime of unlawful assembly whether or not the crime of unlawful assembly is or is not an included offense of the crime of riot as defined by the statute. If, therefore, the crime of unlawful assembly is not an included offense of the crime of riot, the trial court erred in its instructions to the jury, and the verdict may not stand. Likewise, if the information fails to allege facts sufficient to charge unlawful assembly, and the offense of riot and unlawful assembly are distinct offenses as defined by the statute, the defendant may not be charged with the one and tried upon the other.

The court instructed the jury as follows:

"You are instructed that the offense specifically charged in the information is that of participating in a riot. This charge necessarily includes in contemplation of law, the charge of participating in an unlawful assembly, of assault, and of battery, and under the law the defendant may be convicted of the offense specifically charged or of any of such other offenses so included. You are therefore instructed that if you find from the evidence that the defendant is not guilty of participating in a riot, but is guilty of one of the included offenses named, then you may find him guilty of that included offense, which from all of the evidence and under these instructions, you are convinced beyond a reasonable doubt that he is guilty of." (Italics added.)

The court further instructed the jury that their verdict should be:

"Guilty of participating in a riot, as charged in the information, or guilty of participating in an unlawful assembly, as charged in the information, or

"Guilty of assault as charged in the information, or

"Guilty of battery as charged in the information, or

"Not Guilty as your deliberations may result."

The trial court also instructed the jury as to the law defining each of the offenses referred to in the instructions.

Only those sections relating to riot and unlawful assembly need be noticed here. As it is clear the offenses of battery and assault are both alleged, whether or not they are included offenses is not raised in this case.

Riot is defined by the Utah statute to be:

"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." Comp. Laws Utah 1917, § 8218, Rev. Stat. Utah 1933, 103-50-2.

An unlawful assembly is defined to be:

"Whenever two or more persons, assemble together to do any unlawful act, and separate without doing or advancing toward it, or do a lawful act in a violent, boisterous or tumultuous manner, such assembly is an unlawful assembly." Comp. Laws Utah 1917, § 8221, Rev. Stats. Utah 1933, 103-50-5.

Appellant maintains that there are two questions before this court on this appeal: (1) Whether or not the offense defined by the statute as unlawful assembly is necessarily included within the offense of riot as likewise defined by the statute; and (2) whether, if the offense of unlawful assembly is not an included offense of the crime or offense of riot, the information contains all of the necessary or essential allegations to state the offense of unlawful assembly.

No objection is here raised upon the ground of duplicity, or that the information charges two separate offenses, nor, indeed, could such question be raised in the instant case, no objection having been interposed until after verdict. If, therefore, the information alleges facts sufficient to support the charge of riot and also the charge of unlawful assembly and even though they are separate offenses the objection coming as it did after verdict and no objection having been taken by special demurrer or otherwise before the jury was sworn to try the case, the objections here raised could not be considered. The conviction under the circumstances would not be fatal because two offenses are charged in one information. State v. Anderton, 69 Utah 53, 252 P. 280; State v. Durfee, 77 Utah 1, 6, 290 P. 962.

Counsel for appellant does not attack the information for failure to charge some public offense, but for failure to state facts sufficient to sustain the offense of which appellant was convicted by the jury. Many cases involving cases of...

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27 cases
  • State v. Albers
    • United States
    • New Hampshire Supreme Court
    • March 29, 1973
    ...purpose of section II was to give the police a tool to 'nip' riots 'in the bud'. N.H.S. Jour. 855 (1965); see State v. Woolman, 84 Utah 23, 39, 33 P.2d 640, 647 (1934); Rollins v. Shannon supra. There is no 'bud' to a riot or other crime until the assembled group stops talking about the adv......
  • Rollins v. Shannon
    • United States
    • U.S. District Court — Eastern District of Missouri
    • September 26, 1968
    ...the bud, as it were, of incipient conspiracies, embryonic tumults, and plottings against the public peace * *." State v. Woolman, 84 Utah 23, 33 P.2d 640, 93 A.L.R. 723 (1934), and generally, Lair v. State, 316 P.2d 225, 71 A.L.R.2d 856 (Okl.Cr.App.1957), et seq. The Report of the National ......
  • Shenfield v. City Court of City of Tucson, Pima County
    • United States
    • Arizona Court of Appeals
    • July 5, 1968
    ...Law, ch. 5, § 2(C)(1); State v. Butterworth, 104 N.J.L. 579, 142 A. 57, 58 A.L.R. 744, at 748 (1928); and State v. Woolman, 84 Utah 23, 33 P.2d 640, 93 A.L.R. 723 (1934). We agree with the petitioner that not every meeting where violent, boisterous or tumultuous conduct occurs may be denomi......
  • State v. Carruth
    • United States
    • Utah Supreme Court
    • December 10, 1999
    ...and must of necessity be embraced within the legal definition of the greater offense and be a part thereof." State v. Woolman, 84 Utah 23, 36, 33 P.2d 640, 645 (1934). Baker, 671 P.2d at 154-55. Baker explained that "[w]hen considered in their original contexts, it becomes clear that these ......
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