State v. Cole

107 S.E.2d 732 (1959) 249 N.C. 733

STATE of North Carolina
v.
James COLE, James Garland Martin and others to the State unknown.

Nos. 722, 723.

Supreme Court of North Carolina.

March 25, 1959.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Claude L. Love, Bernard A. Harrell, Staff Atty., Raleigh, for the State.

Charles B. Nye, Daniel M. Williams, Jr., Durham, for defendant Cole.

E. L. Alston, Jr., Greensboro, for defendant Martin.

DENNY, Justice.

We shall first consider certain assignments of error based on exceptions which both defendants have preserved and argued in their respective briefs.

The defendants insist that the trial court committed error in refusing to sustain their respective motions to quash the bill of indictment. They contend that while the indictment attempts to charge the defendants and their companions or associates with unlawful assembly, the indictment does not set forth any unlawful purpose or any unlawful acts which the defendants assembled to commit; that it does not charge the defendants with the necessary elements of an attempt to mutually assist each other against lawful authority. The arguments in the briefs are substantially as if the defendants were charged with engaging in a riot, when, as a matter of fact, the bill of indictment charges the defendants, and others to the State unknown, with inciting a riot.

The crimes of inciting a riot and participating in a riot are separate and distinct offenses against the public peace. Both crimes have their origin in the common law.

"Inciting to riot is not a constituent element of riot; they are separate and distinct offenses. * * * One may incite a riot and not be present or participate in it, or one may be present at a riot, and by giving support to riotous acts be guilty of riot, yet not be guilty of inciting to riot." Commonwealth v. Safis, 122 Pa. Super. 333, 186 A. 177, 180; 77 C.J.S. Riot § 1(b), page 423.

In the case of Commonwealth v. Egan, 113 Pa.Super. 375, 173 A. 764, 766, it was held that inciting to riot is a common law offense, the gist of which is its tendency to provoke a breach of the peace, though the parties first assembled for an innocent purpose. The Court said: "Giving the word `incite' its plain and accepted meaning—to arouse, stir up, urge, provoke, encourage, spur on, goad,—there can be no doubt of the offense charged * * *. Inciting to riot, from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot. If any men or set of men should combine and arrange to so agitate the community to such a pitch, that the natural, and to be expected results of such agitation, would be a riot, that, would be inciting to riot, an offense at common law * * *." Commonwealth v. Sciullo, 169 Pa.Super. 318, 82 A.2d 695.

In the instant case, the bill of indictment does charge that the defendants, while armed with certain weapons, did assemble near the Town of Maxton for the common purpose of conducting a meeting and rally of the so-called Knights of the Ku Klux Klan, with the common intent to preach racial dissension and to coerce and intimidate the populace. We hold that the indictment adequately charges an unlawful purpose and that the case of State v. Baldwin, 18 N.C. 195, relied on by the defendants, is distinguishable and not controlling on the charge contained in the bill of indictment in this case.

The defendants were not convicted of unlawful assembly or riot, but of inciting to riot. Naturally, they could not have been convicted of inciting to riot unless the incitement resulted in a riot. "It must be shown in riot that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least having an apparent tendency thereto, as were calculated to inspire people with terror, such as being armed, making threatening speeches, turbulent gestures, or the like, or being in disguise * *. In any case, it is well settled that it is not necessary that personal violence be committed * * *." Wharton's Criminal Law and Procedure (1957 Ed.), Vol. 2, section 864, page 731; State v. Lustig, 13 N. J.Super. 149, 80 A.2d 309. This assignment of error is overruled.

The defendants assign as error the failure of the trial court to sustain their motions for judgment as of nonsuit at the close of the State's evidence, which motions were renewed after the defendants announced they would offer no evidence.

The overwhelming weight of authority seems to be to the effect, in the absence of a statute to the contrary, that persons may assemble together for a lawful purpose, but if at any time during the meeting they act with a common intent, formed before or during the meeting, to attain a purpose which will interfere with the rights of others by committing disorderly acts in such manner as to cause sane, firm and courageous persons in the neighborhood to apprehend a breach of the peace, such meeting constitutes an unlawful assembly. See Annotation: Unlawful Assembly, 58 A.L.R. 751, and 93 A.L.R. 737, where the authorities in support of this view, from many jurisdictions, are assembled.

In the case of People v. Burman, 154 Mich. 150, 117 N.W. 589, 592, 25 L.R.A., N.S., 251, the defendants were convicted of a breach of the peace in violation of a city ordinance. The defendants had marched through the streets of the City of Hancock, Michigan, displaying red flags. They had been warned that the display of such flags would cause a breach of the peace and riots. The Court, in upholding the convictions, said: "The question here is not whether the defendants have in general a right to parade with a red flag. It is this: Had they such right, when they knew that the natural and inevitable consequence was to create riot and disorder? Defendants knew this red flag was hated by those to whom it was displayed, because it was believed to represent sentiments detestable to every lover of our form of government. They knew that it would excite fears and apprehension, and that by displaying it they would provoke violence and disorder. Their right to display a red flag was subordinate to the right of the public. They had no right to display it when the natural and inevitable consequence was to destroy the public peace and tranquillity. It is idle to say that the public peace and tranquillity was disturbed by the noise and violence, not of the defendants, but of those whose sentiments they offended. When defendants deliberately and knowingly offended that sentiment, they were responsible for the consequences which followed, and which they knew would follow. It is also idle to say that these others were wrongdoers in manifesting in the manner they did their resentment at defendants' conduct. This merely proves that they and defendants were joint wrongdoers; that they, as well as defendants, violated the ordinance in question. The object of this proceeding is not to redress the grievance of these other wrongdoers, but it is to redress the grievance of the public whose rights they and defendants jointly invaded. The guilt of their associate wrongdoers does not lessen defendants' responsibility. It is sufficient to say that defendants by their conduct did `aid, countenance, and assist in making a riot, noise, and disturbance, and therefore violated ordinance No. 10 of the city of Hancock.'"

In the case before us, the evidence supports the view that the so-called Knights of the Ku Klux Klan, under the leadership, control and direction of the defendant Cole, did by inflammatory speeches and crossburnings, and reports thereof published in the newspapers, incense the Indians of Robeson County to such an extent that the proposed rally at Maxton would tend to provoke a breach of the peace and incite to riot. In fact, Cole was so advised before and after the rally was underway. Moreover, Cole and Martin knew that the purpose of the rally was to incense, intimidate, and scare the indians. There is evidence to the effect that when Sheriff McLeod arrived at the scene of the planned rally on Saturday night, 18 January 1958, he advised Cole not to try to hold the rally; that Cole said "he couldn't see any reason why he should not hold it, but would tone it down some." This we think is tantamount to an admission by Cole that he originally intended to make statements that would be resented by the Indians and likely to cause them to riot. Otherwise, why "tone it down"? As to Martin, according to the evidence admitted against him, Cole had told him about a week or two before the Maxton rally that there were about 30,000 half-breeds in Robeson County and he was going to have a meeting and try to "scare them up." Therefore, it is evident that Martin knew the purpose of this particular meeting.

In light of the evidence disclosed on the record on this appeal, there can be no justification for the defendants and their associates to go to the rally at Maxton on 18 January 1958, armed with rifles, shotguns, pistols and other weapons, some concealed and others unconcealed, if their intent and purposes were legitimate and peaceful. Such show of armed defiance was incompatible with peaceful and lawful purposes. Moreover, such conduct within itself would be calculated to cause a breach of the peace in any community, particularly in a county where the defendant Cole had been preaching racial dissension and hatred and conducting cross-burnings for the purpose of frightening certain Indian families in the community. If any of the Indian residents of Robeson County are violating the law in any respect, it is the duty and responsibility of the duly constituted law enforcement officers of that county to prefer proper charges against them and to see that they are dealt with according to law (and this we are confident they will do), but there is nothing in our Constitution or laws that authorizes the Ku Klux Klan or its officers to substitute themselves for the law enforcement officers of a community or the courts of the State.

In our opinion, when all the evidence adduced in the trial below is considered in the light most favorable to the State, as it must be on a motion for judgment as of nonsuit, it is sufficient to carry the case to the jury as to both defendants, and we so hold. State v. Block, 245 N.C. 661, 97 S.E.2d 243; State v. Burgess, 245 N.C. 304, 96 S.E.2d 54; State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768.

The defendant Martin assigns as error the admission, over objection, and exceptions duly entered, of certain evidence against him with respect to the conversations between the defendant Cole at his residence in Marion, South Carolina, Sheriff McLeod of Robeson County, and certain members of the State Highway Patrol, although Martin was not present at the time. This defendant likewise assigns as error the evidence admitted against him of certain statements made by Cole, not in the presence of the defendant Martin, as to why he had the cross-burnings at St. Pauls and East Lumberton the latter part of the week before the Maxton rally. We think the evidence as to the contents of the conversations in Marion, South Carolina and as to why the crosses were being burned in Robeson County was inadmissible as to Martin and should have been excluded as to him, and the failure to do so entitles him to a new trial. State v. Franklin, 248 N.C. 695, 104 S.E.2d 837; State v. Kluttz, 206 N.C. 726, 175 S.E. 81; State v. Simmons, 198 N.C. 599, 152 S.E. 774; State v. Green, 193 N.C. 302, 136 S.E. 729.

The defendant Cole's assignments of error Nos. 10 through 18 are based on his exceptions to the court's charge. Assignment of error No. 10 is directed to the court's definition as to what constitutes a riot. The court pointed out that there is no statutory definition of riot in this State, but that it has been defined by our Supreme Court to be, "a tumultuous disturbance of the peace by three persons or more assembled together of their own authority, with intent mutually to assist one another against all who shall oppose them, and afterwards putting the design into execution, in terrific and violent manner, whether the object in question be lawful or otherwise. Indictment for riot always must charge the defendants with unlawful assembly, mutual intent to assist one another, and execution of the intent by overt acts, before they can be convicted." This definition was taken almost verbatim from the opinion of this Court in the case of State v. Stalcup, 23 N.C. 30, and approved in State v. Hoffman, 199 N.C. 328, 154 S.E. 314, 316.

It was not only proper but incumbent upon the court to define the crime of riot. It was not the crime for which this defendant was tried, but the crime which he was charged with inciting. Unless the jury could find from the evidence that a riot occurred, it would not have been justified in finding this defendant guilty of inciting a riot. This assignment of error is without merit.

The defendant Cole's exception No. 45, argued under assignment of error No. 12, is to the instruction given by the court with respect to the right to bear arms. The pertinent part of the instruction was as follows: "* * * the Constitution and laws of this State guarantee to a person the right to bear arms and right to assemble peaceably for the purpose of registering their grievances. I instruct you that does not give any individual, or any body of individuals, the right to bear arms for unlawful purposes in any respect anywhere."

This Court said in the case of State v. Huntly, 25 N.C. 418: "The bill of rights in this State secures to every man, indeed, the right to `bear arms for the defense of the State.' While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employs those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege with which he has been invested. * * * A gun is an `unusual weapon' wherewith to be armed and clad. No man amongst us carries it about with him, as one of his everyday accoutrements—as a part of his dress—and never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving and law-abiding State as an appendage of manly equipment * * *. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people." This exception is without merit.

Exceptions Nos. 46 and 47, argued under this same assignment of error, are to the following portions of the court's charge: "If you find from the evidence beyond a reasonable doubt that on this occasion they went to this place for an unlawful purpose, armed with deadly weapons, pistols, rifles, guns, blackjacks, for the purpose of conducting a meeting, despite any opposition that might develop, and putting down by force any resistance to such meeting and to mutually assist each other in such conduct, that would constitute unlawful assembly; and if they took steps to carry it into execution in a violent manner, would constitute a riot. * * * (Exception No. 46)

"It makes no difference whether the original purpose of assembly be lawful or unlawful. If it be for a lawful purpose and after having so assembled they change their plan or mind about it and adopt an unlawful purpose of assembly, that which has been a lawful assembly is converted into unlawful assembly, and if that be done by mutual consent in carrying out the design or putting the design into execution, with mutual intent to assist each other against any opposition, and violence and tumult result, that would constitute unlawful assembly, and if you so find beyond a reasonable doubt you will satisfy the law with respect to that element of the offense alleged." (Exception No. 47)

We do not construe these instructions as prejudicial to the defendant. They do not eliminate the necessity for an unlawful assembly, which must be charged and proven where one is tried on a bill of indictment for participating in a riot. State v. Hoffman, supra.

In State v. Stalcup, supra, an unlawful assembly was charged, but there was no charge that the parties assembled for the purpose of doing a lawful act in an unlawful manner or of doing an unlawful act. However, the authorities hold an unlawful assembly may be created deliberately or by chance. In any event, the unlawful assembly must precede the conduct which constitutes participation in a riot. In considering what constitutes a riot or civil commotion, this Court, in Spruill v. North Carolina Mut. Life Insurance Co., 46 N.C. 126, said: "A riot is where three or more persons actually do an unlawful act, either with or without a common cause. To this, Chitty, in his note, says, `The intention with which the parties assemble, or, at least, act, must be unlawful,' and this qualification of Mr. Chitty is recognized by this Court in the case of State v. Stalcup, 23 N.C. 30."

It is said in 77 C.J.S. Riot § 1, page 422: "Inciting to riot. The gist of this offense is its tending to provoke a breach of the peace, even though the parties may have assembled in the first instance for an innocent purpose, and it is an offense at common law. It means such a course of conduct, by the use of words, signs, or language, or any other means by which one can be urged to action, as would naturally lead or urge other men to engage in, or enter on, conduct which, if completed, would make a riot."

In 46 Am.Jur., Riots and Unlawful Assembly, section 10, page 103, we find the following: "An unlawful assembly is a constituent and necessary part of the offense of riot at common law, and must precede the unlawful act which completes the offense. Very evidently therefore, presence of the essential elements of an unlawful assembly is essential to a conviction for riot, and should be considered in connection with prosecutions for riot. Neither the time nor the place of the assemblage is material in determining whether or not the assemblage constitutes a mob * * * although the place of the riot may be material in determining liability as between the county and a municipality. Likewise, the fact that the group of persons do not voluntarily come together does not prevent their action from being that of a mob; nor is the primary purpose for which they assemble material, if they in fact form and execute an unlawful purpose after they are brought together." These exceptions are overruled.

We have carefully reviewed the remaining exceptions and assignments of error and, in our opinion, no error has been made to appear that would justify disturbing the verdict below as to the defendant Cole.

As to the defendant Cole—No Error. As to the defendant Martin—New Trial.