State v. FiskState v. Fisk
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- Before:
- Hamilton
These are consolidated cases. Both defendants appeal from a conviction under
The charges from which the convictions flow arose as a result of a “sit-in” type gathering of persons in the administration building of Olympic Community College in Brem-erton, Washington. The avowed purpose of the assemblage was to meet with the college president, Dr. J. D. Park, and protest the expulsion of defendant Adkins from the college for disciplinary reasons.
The group, consisting of defendants and 65 or more other persons, mostly students of the college, assembled in the administration building about 2 p.m., April 24,1968. At that time they were informed that the president was not in his office and it was not known for certain when he would return. Part of the group remained in the president’s outer office, and the remainder repaired to an adjacent corridor. At the end of the business day, the group in the office joined the others in the hall. The entire group, with some fluctuation in numbers, remained in the building throughout the night of April 24 and the day of April 25, sleeping in sleeping bags, eating, studying, talking, listening to radios and phonographs, and playing musical instruments. Due to the confusion, crowding, noise, and paraphernalia in the corridor ingress and egress to offices off the corridor was difficult and the daily work of the administrative staff was substantially impaired.
The president of the school was advised of the situation, and conferred with legal counsel in Olympia, Washington, *320during April 25. At 7:30 p.m. that evening, he met with the board of trustees of the college as well as with members of his staff. It was decided that the president would request the assemblage to leave the building and if they refused the police would be called in.
At 9:30 p.m., the official closing time of the administration building, the president, the vice-president, the Bremer-ton Chief of Police, and other public officials appeared before the group. The president addressed the group, advising them that the official closing time for the building had come and requested that they leave the premises. The group caucused and, with some exceptions, decided to remain until their grievances had been resolved.
Thereafter, the chief of police advised the group that the gathering was being declared an unlawful assembly and if they persisted in remaining in the building they would be arrested and charged with various offenses. A period of time was provided for additional discussion, during which defendants Fisk and Adkins requested the group to remain which, with some exceptions, the participants undertook to do‘. At 10:20 p.m., arrests commenced and proceeded peacefully.
In all 67 persons were arrested and charged. Of these 2 were under 18 years of age and were processed as juveniles; 12 or 13 pleaded guilty and received deferred sentences; 4 nonstudents, charged with vagrancy, failed to appear in court resulting in the issuance of bench warrants; charges against 2 were dropped for appropriate reasons; and the remainder agreed to be bound by the joint trial of 6 defendants, including Fisk and Adkins, in- district court.
The six defendants were charged with disturbing a school meeting, unlawful assembly, and failure to .disperse from an unlawful meeting, in violation of
In district court, the defendants were tried before a jury. The jury acquitted them of the offenses of disturbing a school meeting and unlawful assembly and found them guilty of the offense of failing to disperse from an unlawful meeting. The jury also found defendant Adkins guilty of the vagrancy charge.
In the district court, defendants Fisk and Adkins moved for an arrest of judgment contending that the verdicts of acquittal on the unlawful assembly charge and of guilty on the failure to disperse from an unlawful meeting were inconsistent and could not stand. Defendant Adkins also challenged his conviction on the vagrancy charge asserting that
During the course of a trial de novo before the superior court sitting with a jury, the defendants renewed their challenges relating to the inconsistent verdict question and the asserted vagueness of
By their respective assignments of error, three issues are presented: (1) Whether
In State v. Oyen, 78 Wn.2d 909, 480 P.2d 766 (1971), and State v. Maloney, 78 Wn.2d 922, 481 P.2d 1 (1971), we fully considered the question of whether
These statutory standards and limitations, in our view, are sufficiently definite and specific to give any ordinary person of common intelligence wishing to avoid the interdiction ofRCW 9.87.010(13) reasonable notice of the prohibited conduct. The provision, therefore, squares with procedural due process and is not unconstitutionally vague.
State v. Oyen, 78 Wn.2d 909, 917, 480 P.2d 766 (1971).
This determination is dispositive of the first issue raised by defendants. Being a nonstudent at the time of the incident in question, defendant Adkins fell within the proscriptions of the statute, and his conviction thereunder is affirmed.
For purposes of clarity, in approaching the second issue, we set out the statutes involved.
Whenever three or more persons shall assemble with intent—
(1) To commit any unlawful act by force; or,
(2) To carry out any purpose in such manner as to disturb the public peace; or,
(3) Being assembled, shall attempt or threaten any act tending toward a breach of the peace, or an injury to persons or property, or any unlawful act — such an assembly is unlawful, and every person participating therein by his presence, aid or instigation, shall be guilty of a gross misdemeanor.
*323Every person who shall remain present at the place of an unlawful meeting after having been warned to disperse by a magistrate or public officer, unless as a public officer or at the request of such officer he is assisting in dispersing the same, or in protecting persons or property or in arresting offenders, shall be guilty of a misdemeanor.
It is the defendants’ contention that the phrase “unlawful meeting” as utilized in
Defendants’ argument is predicated upon our holding in State v. O’Neil, 24 Wn.2d 802, 167 P.2d 471 (1946), wherein we stated the rule relative to inconsistent verdicts as follows, at page 809:
What constitutes inconsistency depends upon the particular circumstances. If the crimes charged in separate counts are composed of different elements, a verdict of acquittal on one ordinarily is not inconsistent with a verdict of guilty on another. 23 C. J. S. 1093, § 1403; State v. Powers, 152 Wash. 155, 277 Pac. 377; State v. Baird, 200 Wash. 227, 93 P. (2d) 409. But where, as in the instant case, two offenses growing out of the same transaction are charged in separate counts of an indictment or information, and one offense includes elements or acts necessary to the commission of the other offense, a verdict of acquittal of the one is inconsistent with a verdict of guilty of the other. [Citing cases.]
The state, in response to defendants’ contention, asserts that the two offenses, respectively defined by
*324We agree with the state.
The elements of the offense defined by
It is thus apparent that the primary thrust of
In contrast, the elements of the offense set forth in
We conclude from this comparison of the two offenses involved that they are composed of different elements and an acquittal of a charge under
Under the third issue presented, defendants contend that, *325in any event, the evidence failed to establish that the assemblage in the corridor of the Olympic Community College administration building constituted ah unlawful meeting.
We cannot agree with defendants’ contention.
The record before us, although rather inadequate, indicates that (1) a group of some 65 persons, of which defendants were a part, occupied the corridor of a public school building for upwards of 2 days without official permission or sanction; (2) their presence, location, conduct, and composition substantially impaired the normal function to which the building was dedicated and of which their assemblage was not a part; (3) the official daily closing time of the building was 9:30 p.m.; (4) on April 25, 1968, at approximately 9:30 p.m., the president of the college advised the assemblage of the closing time and requested that they depart the building; (5) thereafter the chief of police formally warned the group to disperse; and (6) the defendants failed and refused to comply with the warning. At a minimum, the presence and conduct of the group amounted to a trespass or a nuisance and was under the circumstances unlawful. The conviction of defendants under
The judgments are affirmed.
Finley, Rosellini, Hunter, Hale, Stafford, and Sharp, JJ., and Ryan, J. Pro Tern., concur.
Notes
“Every person who shaH remain present at the place of an unlawful meeting after having been warned to disperse by a magistrate or public officer, unless as a public officer or at the request of such officer *319he is assisting in dispersing the same, or in protecting persons or property or in arresting offenders, shall be guilty of a misdemeanor.”
“Every—
“(13) Person, except a person enrolled as a student in or parents or guardians of such students or person employed by such school or institution, who without a lawful purpose therefor wilfully loiters about the building or buildings of any public or private school or institution of higher learning or the public premises adjacent thereto—
“Is a vagrant, . . .”
-“Any person who shall wilfully create a disturbance on school premises‘during school hours or at school activities or school meetings shall be guilty of a-misdemeanor, .-the penalty ¡for which’ shall be a-fine in any sum not more than fifty dollars‘. . . .”
“Whenever three or more persons shall assemble with intent—
“(1) To commit any unlawful act by force; or,
“(2) To carry out any purpose in such manner as to disturb the public peace; or,
“(3) ‘Being assembled, shall attempt or threaten any act tending toward a breach of the. peace, or an injury to persons or property, or any unlawful act — such an assembly is unlawful, and every person participating therein by his presence, aid or instigation, shall be guilty of a gross misdemeanor.”