217 Wis. 325 | Wis. | 1935
The plaintiffs in error, hereinafter called the defendants, contend that a verdict finding each of them guilty of engaging in an unlawful assembly and riot in violation of sec. 347.02, Stats., is not supported by, and is contrary to, the evidence; and that the court’s instructions to the jury were
Those facts well warranted the jury in finding that the defendants wilfully participated in assembling and keeping together on a public highway a large number of persons, who, while so assembled, unlawfully and in a violent and tumultuous manner blockaded the entrance to the Milwaukee Club and lawful passage along North Jefferson street by persons entitled to use the street for those purposes without being disturbed; and who also unlawfully refused to disperse peaceably when commanded to do so by police officers. Defendants’ conduct in those respects was clearly in violation of the provisions in sec. 347.02, Stats., that—
“Any three or more persons who . . . being together, shall make any attempt or motion towards doing a lawful or unlawful act in a violent, unlawful or tumultuous manner, to the terror or disturbance of others, shall be deemed an unlawful assembly; and if they commit such acts in the manner and with the effect aforesaid they shall be deemed guilty of a riot and shall be punished,” etc.
There may be a punishable violation under those provisions, even though the accused did not assemble, at the outset, in a violent or tumultuous manner to do an unlawful act. True, a gathering which assembles, at the outset, for the purpose of doing an unlawful act, constitutes one type of unlawful assembly that is punishable under that statute. But, as was recognized in Bonneville v. State, 53 Wis. 680, 684, 11 N. W. 427, there is also a second type of unlawful assembly that is punishable under that statute. Even though, at the
As the evidence established beyond a. reasonable doubt that the assembly in question unlawfully blockaded public travel on the street, and also unlawfully refused to disperse when commanded to do so by the police officers, it was of the second type which is prohibited by sec. 347.02, Stats. Under those circumstances, the following instructions, excepted to by the defendants, but in which the court rightly stated what ultimate facts had to be established in these cases in order to find that offenses were committed in violation of sec. 347.02, Stats., were applicable and proper in all respects, to wit:
“And if after the assembly had occurred and while the meeting was being held and speeches were being made the assembly attempted or made a move toward blockading the sidewalk or the street, or both, or blockading the entrance to the Milwaukee Club, such assembly became an unlawful assembly and if it was violent and tumultuous and resulted in terror or in a serious disturbance to those who were the object of the demonstration and protest it became an assembly as amounted to a riot and to a violation of this statute which I have quoted.” „
“If after the assembly here in question had come together and during the course of the meeting it resulted in blockading the sidewalk and street or either or the entrance to the Milwaukee Club and the officers, in this case the policemen called upon the members of the assembly to disperse, and if the persons so assembled did not thereupon immediately and peacefully disperse the assembly became at that point an unlawful assembly and those participating in it were subject to arrest and punishment.”
“Another statute bearing upon the same subject contains provisions that if any persons to the number of thirty or more shall be unlawfully, riotously or tumultuously assembled in any city, it shall be the duty of certain officers named, including constables, which includes police officers, the sheriff and his deputies, to go among the persons so assembled, or as near them as may be with safety, and in the name of the state of Wisconsin, to command all persons so assembled immediately and peaceably to disperse, and if the persons so assembled shall not thereupon immediately and peaceably disperse, it shall be the duty of such officer or officers to cause the arrest and taking into custody of the persons so unlawfully assembled. In such instance the assembly would be an unlawful assembly.”
That instruction properly informed the jury as to the substance of those portions of sec. 347.04, Stats., which make it the duty of police officers “to command” assembled persons “immediately and peaceably to disperse,” and to make arrests in order to suppress an unlawful assembly under certain circumstances, including “if any persons to the number of thirty or more, whether armed or not, shall be unlawfully, riotously or tumultuously assembled,” and if they shall not immediately and peaceably disperse when commanded to do so by such officers. As there was ample evidence from which the jury could find that the defendants, as part of a crowd of more
As it appears beyond dispute that neither the defendants nor those in the assembly who acted upon the defendants’ exhortations not to disperse, were intent upon using North Jefferson street in the exercise of the legal right of travel along a public highway, as recognized by this court in Shields v. State, 187 Wis. 448, 204 N. W. 486, but that they were unlawfully obstructing and blockading public travel by others entitled so to do without any such’wilful interference or disturbance, there is not involved in this, case any question as to
Exception was also taken to the instruction that—
“Evidence has'been received to the effect that the defendant Bassett has been heretofore convicted of a crime. This*333 evidence was so received because it bears upon the credibility of such defendant as a witness. The law assumes that a witness who has been convicted of a crime may not be as worthy of belief as a witness who has never been convicted of crime, and the fact of conviction is one that you may take into consideration in weighing his testimony and determining upon his credibility. It must not be used for any other purpose and particularly you would bear in mind that conviction of a defendant of a crime at some previous time is no proof that he is guilty of the offense with which he is now charged.”
On the trial Bassett had testified that he had been convicted of a crime. On the other hand, there was no such evidence as to any other witness. As, under those circumstances, Bassett was the only witness as to whom there was any such evidence or such an instruction could possibly be applicable, no error was committed in mentioning his name in the instruction, which rightly informed the jury as to the reason for receiving, and the only purpose for which such testimony could be considered. That the instruction was only applicable to Bassett should and would undoubtedly have been appreciated by the jurors regardless of whether the court mentioned or omitted Bassett’s name. Although, ordinarily, instructions as to rules of law for detérmining the credibility of witnesses, or the weight of evidence, should not single out or discredit any particular witness or item of evidence (Schutz v. State, 125 Wis. 452, 460, 104 N. W. 90, 93; Grabowski v. State, 126 Wis. 447, 105 N. W. 805), there was, in view of the facts last stated, no prejudicial error in thus mentioning Bassett’s name. Stevens v. People, 215 Ill. 593, 74 N. E. 786. On the contrary, the manner in which the court expressly limited the purpose and effect of that testimony evidences the court’s intention to properly protect Bassett against any unwarranted, unfavorable deduction therefrom by the jury.
By the Cotvrt. — Judgments affirmed.