85 P. 611 | Or. | 1906
Lead Opinion
delivered the opinion.
Upon the showing made in the case there was, in our opinion, no abuse of discretion. The affidavits in support of the motion were all made by non-residents who had been in the county but a few days, and, in the nature of things, could not have been familiar with the general public sentiment. On the contrary, the affidavits filed by the prosecution were by officers, citizens and residents of the county, who all state that they were familiar with the public feeling, and that in their opinion a fair and impartial trial could be had in the county. This view was subsequently confirmed by the fact that no particular difficulty seems to have been experienced in securing a jury. It is true the newspaper articles made a part of the record were inaccurate in many particulars and somewhat sensational, but they were not particularly inflammatory or calculated to so prejudice the citizens of the county against the defendants as to prevent a fair and impartial trial.
“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:” B. & C. Comp. § 1913. .
To constitute a crime under this statute, there must be: First, the use of force or violence or threats to use force or violence, accompanied by immediate power of execution; second, such force or violence or threats must be by three or more persons acting together; and, third, they must be acting without authority of law. It is, of course, not necessary that the three persons should do the same act in the sense that what one does must be identical with what is done by each of the others to
McCulloch, the fireman of the freight train, testified that, at the time the train pulled in on the siding and stopped, the defendant Georges and 10 or 15 other men came up to the gangway of the engine, and Georges said to the engineer, “Come down, you son of a bitch, if you want to fight,” and that he would kill him; that several shots were fired at the engine before witness left it, three passing through the witness’ window and one through that of the engineer and the glass was broken out of the front of the cab; that witness examined the engine
Johnson was a brakeman on the freight train, and testified that after the train pulled in on the siding he heard shots up front, and, supposing the head brakeman was having some trouble with “hoboes,” started in that direction and met the defendants Georges and Demás in company with several other persons; that Georges grabbed him by the arm and inquired if he was the conductor, and, being answered in the negátive, asked where the conductor was, and was told that he was in the caboose; that Georges said, “I kill the conductor,” and, “I kill you, you son of a bitch,” and slammed him up against a ear; that witness broke away from Georges and started to run toward the caboose, and when he got about two car lengths from it some one commenced firing at him, and he dodged between the cars and over to the other side of the train and ran to the caboose and told the conductor that if they found him they
There was much additional testimony as to the general character of the difficulty, the number of shots fired, and the like, but this is sufficient to show that there was abundant evidence tending to prove the use of force and violence by three or more persons acting together and without authority of law, and hence the crime of riot; and that the defendants Georges, Demás and Mizis were either actively engaged in such riot or present aiding and assisting others to commit the crime.
A claim is made that the proof does not show that there was any community of action between the defendants, or that either of them did the shooting at the fireman and engineer as charged in the indictment, or assisted, aided or encouraged the same. But there was sufficient proof on both of these points to take the case to the jury. Mizis, in company with a crowd of his fellow countrymen, was seen approaching the engine armed with a gun and was using threatening language toward the trainmen just before the firing began. Georges was at the engine about that time threatening the life of the engineer, and Demás was shown to have been in the crowd a few minutes later actively participating in the difficulty. So the jury were justified in finding
There are objections to other parts of the charge, but they are mere verbal criticisms and do not affect the merits.
Finding no error in the record, the judgment is affirmed.
Affirmed.
Rehearing
On Motion for Rehearing.
delivered the opinion.
“If any person shall be guilty of participating in any riot, such person, upon conviction thereof, shall be punished as follows:
(1) If any felony or misdemeanor was committed in the course of such riot, such person shall be punished in the same manner as a principal in such crime;
(2) If such person carried, at the time of such riot, any species of dangerous weapon, or was disguised, or encouraged*182 or solicited other persons who participated in the riots to acts of force or violence, such person 'shall be punished by imprisonment in the penitentiary not less than three nor more than fifteen years;
(3). In all other cases, such person shall be punished by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than fifty nor more than five hundred dollarsB. & C. Comp. § 1914.
Under this statute, if a felony or misdemeanor'is committed in the course of a riot, any person participating therein is to be punished in the samé manner as a principal’in such felony or misdemeanor, or if the person participating in the riot carries a dangerous weapon at the time, he shall be punished by'imprisonment in the penitentiary not less than three nor more than 15 years. In all other eases — that is, where no felony or misdemeanor is committed or where the defendant does not carry a dangerous' weapon — the punishment shall be' by imprisonment in the county jail or by finé.
Now, in this case the indictment and the proofs show that in the course of the riot an assault with a dangerous weapon was committed upon Woodson and McCulloch, which constituted either a felony’ or a misdemeanor, and therefore the punishment of any person participating in such riot was the same as that provided by Section 1771, B. & C. Comp., for an assault with a dangerous weapon, which is by imprisonment in the penitentiary not less than six months nor more than ten years, or by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $100 nor more than $1,000. It seems to us clear, therefore, that the defendant Demás was subject to imprisonment /in the penitentiary, although he did not carry, at the time of the riot a dangerous weapon. He was present, aiding, assisting and encouraging his codefendants to commit an assault with a dangerous weapon, and is liable as a principal. The petition is denied.
Aeeirmed : Rehearing Denied.