With all respect, I am of the positive opinion that the majority of the Court has misconceived the mandatory requirements that govern the settling and enrolling of bills of exception and, in addition, has, in determining the guilt or innocence of the accused, failed to attach proper importance to questions of fact that plainly appear in the transcript of the testimony that the majority treats as a part of this record. On the questions of venue, the impaneling of the jury, Governor Neely's proclamation, the introduction of photographs, the rulings on instructions, and the trial court's charge to the jury, I am in agreement.
Here we are dealing with the power to extend the time for signing bills of exception and entering an order making *Page 476 them a part of the record and not with the actual signing and entry of that order. However, since the principles controlling the two powers are necessarily the same, no distinction will be attempted in discussing the applicable cases. Nor will the question whether the statute confers the power to extend an extension or, stating it differently, to grant more than one extension, be more than noted.
The decisions of this Court are not in harmony on the question of whether an order nunc pro tunc can be used for the purpose of making a bill of exceptions a part of the record after the time allowed by statute for that purpose has expired. There is no doubt that the statutory provisions are mandatory and yet, in the case of Clonch v. Tabit, 122 W. Va. 674,12 S.E.2d 521, this Court seems to have applied the doctrine of estoppel, in effect holding that the nunc pro tunc order there involved had no effect, but since the conduct of opposing counsel had brought about the delay beyond the statutory time, he was precluded from raising the question in this Court. The question is not carried into the syllabus of the Clonch case. The case of State v. Berle, 117 W. Va. 825,188 S.E. 481, while it does not involve a nunc pro tunc order, if followed, would make merely directory all rules that require a settled practice. In that case the statutory time expired on February 1, the opinion stating that on that day a certificate, not stating its nature, was prepared and ready for signature, and was called to the attention of the trial judge, not stating by whom. The paper was not signed until March 11 and this Court treated its execution as relating back to February 1. Again the question was not dealt with in the syllabus.
Our most recent case in which the question is discussed is that of State v. Tate, 125 W. Va. 38, 22 S.E.2d 868, holding in Point 1 of the Syllabus that a bill of exceptions signed by the trial judge after the expiration of sixty days from the term's adjournment without an extension of time is void, and stating on Page 40 of the opinion that the defect cannot be cured by an order nunc *Page 477 pro tunc. The Tate opinion cites Monongahela Railway Company v.Wilson, 122 W. Va. 467, 10 S.E.2d 795, opinion by Judge Fox, which concludes with this language:
"The value of any rule of procedure depends on its uniform and consistent application to all cases presented, and we have, therefore, felt impelled to adhere to the long followed rules of procedure, which these decisions establish."
In my judgment the many West Virginia citations in theMonongahela opinion will be found to condemn the departure from statutory provisions held mandatory in a compelling majority of our decisions by an order nunc pro tunc or otherwise.
The Tate case being the latest pronouncement of this Court on the subject, I prefer to follow it rather than to brush aside the rule therein enunciated without comment.
However, if it be conceded that a proper order nunc pro tunc can dispense with the formality of perfecting bills of exception within the time allowed by statute, I think that the order in this matter was improperly entered by the Circuit Court because there was no memorandum of what really occurred upon which it could be based, the majority opinion correctly recognizing that that is a prerequisite of an order of that kind. Here what was used as a memorandum was the reporter's certified transcript of his stenographic notes made at the time. The transcript was not made at the time of the motion under consideration. The original stenographic notes, supported by testimony, or, perhaps, affidavit, might have been properly used. Code, 51-7-2, provides for their authenticity. But to say that a transcript certified by the trial judge as being correct as required by Code, 51-7-4, because he so remembers what took place can be used as a memorandum as to what did take place to refresh the same memory that fathered it, is certainly at least begging the question. A transcript is made subject to the memory of the trial judge. It is to be corrected *Page 478 by his memory: not his memory corrected by it. To my mind it is perfectly clear that a memorandum upon which an order nunc protunc can be founded must be a written notation made at the time accurately showing what actually took place. A transcript made weeks later, as here, is certainly not that sort of paper.
It will not do to say, as does the majority opinion, that counsel's statement that it was his purpose to apply to this Court for a writ of error and at the same time moving for a ninety day stay of execution, bills of exception not being mentioned, operated as a memorandum indicating that he was then asking an extension of time for the preparation of bills of exception. Granting that a copy or transcript of the reporter's original stenographic notes, not the original notes made in court at the time, is in fact a memorandum, which in my opinion is open to very serious question, what actually transpired before the Circuit Judge was this:
"Mr. Riley: We would like to give notice that we intend to make application for writ of error and supersedeas and would like a stay to prepare the record. Will that stay be ninety days?"
"The Court: I suppose you will need at least ninety days for that, Mr. Riley, considering the length of this record."
"Mr. Moore: I certainly have no objection to ninety days."
"The Court: And considering the engagements of the court and its reporter for the next ninety days, I think you will need every bit of ninety days, but of course, you can easily have an extension, if that should be necessary."
"Mr. Riley: Ninety days from today?
"The Court: Yes. That is enough under normal conditions but if you need more, you can have it, of course. Naturally, we don't wish to throw any stone in the way of every proper appeal you may have. Is there anything further, gentlemen?"
"That is all." *Page 479
The stay requested was granted. That was imperative at the time to prevent the convicted accused from being imprisoned and serving their sentences of thirty and sixty days while the record was being prepared and application made for a writ of error. An extension of time for the signing of bills of exception was at that moment entirely unnecessary. The court and counsel knew that that could be taken care of within sixty days from the adjournment of the then term of the Hancock County Circuit Court. A stay of execution was all that was asked and that is all that was granted. What is said in the majority opinion concerning the discussion of the time required to transcribe the testimony and prepare the record, of course applies with equal force to a stay of execution alone, and consequently means nothing. To treat counsel's statement as a memorandum indicating that a motion for extension of time was then made would certainly exclude a motion for a stay of execution. Both motions certainly were not made. To ascribe a double meaning to the one motion actually placed before the Circuit Court, would establish an extremely loose practice and would be counter to the West Virginia authorities cited in theMonongahela case, all of which are based upon the fact that appellate review is in no sense a matter of absolute right, drawing no distinction between civil and criminal cases, as does the majority opinion, but is a privilege which can nullify the effect of otherwise final judgments or decrees and is available only to those who strictly comply with the mandatory statutory requirements. Those requirements, in my opinion, are jurisdictional; not procedural, as stated in the majority opinion. Crowe v. Corporation of Charles Town, 62 W. Va. 91,57 S.E. 330. Here, in my opinion, plainly that was not done. Hence the transcript of testimony is not before this Court and, since each assignment of error is based upon the evidence taken, the writ should be dismissed as improvidently awarded.
The subsequent order of June 28, 1945, granting a further sixty-day extension of time to prepare bills of exception, was entered after the trial judge had asked *Page 480 counsel if it was being entered in proper time and received assurance that it was. In no event could it affect the questions under discussion.
However, treating the entire record as being here and the decision as turning upon the sufficiency of the proof, to sustain a verdict of guilty of refusing to disperse an unlawful assembly when commanded by a magistrate to do so, in my judgment the majority opinion has entirely ignored the outstanding and controlling circumstances that should determine the decision: that is, the feeling of the rank and file of the people of this country at that time toward any effort to interfere even in a small way with our "war effort", coupled with the fact that the assemblage involved was at one of the main entrances to a war plant during a change of shifts. Public feeling was then highly sensitive concerning war work. Judges should remember that commonly known fact and of it all courts should take judicial notice. The general feeling and the local circumstances both must be considered in order to decide whether the gathering at the No. 5 gate of the Weirton Steel Company's plant consisted of more than three persons bent upon a common unlawful purpose intended to be accomplished in such a way as to cause sane, firm and courageous persons to apprehend a breach of the peace or unlawful violence. If so, it was an unlawful assembly.
In March, 1944, the "all-out" world war was far from ended. Our young men were still on Guadalcanal and the Normandy invasion in Europe had not begun. A large percentage of us had close relatives in our country's armed services, several million of them being overseas. We were doing our best to support them with every nerve and fiber that we had. Weirton Steel had more than ten thousand employees at this plant engaged exclusively in the making of war material. It is not difficult to imagine that the interference with or stoppage of that work would lead to other interferences or stoppages, the combined or separate effect of which could delay the end of the war. That would cost lives. Certainly it was not *Page 481 a time for the making of war profits, nor for a labor organization to demand a share of the loot, if loot there were. People dreaded curtailed war production more than they feared war profits. That they could deal with later. Some looked upon interferences with production as being the enemy boring from within. Much more could be said in describing the high tension under which our people labored in the spring of 1944 and to illustrate the danger of an outbreak of feeling that gave rise to the circumstances of this case.
March 30, 1944, was pay day at the plant of Weirton Steel and between one-thirty and two-thirty of that day was the hour to change shifts and pay off. For some reason that does not clearly appear the officers of the CIO as well as the public authorities, perhaps informed by Weirton Steel, expected some unusual occurrences at gate 5 of the Steel Company's plant on that day and at that hour. An officer of the CIO had informed a New York newspaper known as "P. M.", as well as the Pittsburgh Sun-Telegraph and the Pittsburgh Press, and reporters and photographers had been assigned to Weirton for the occasion. The Sheriff of Hancock County and eight special deputies, the Chief of Police of Holliday's Cove, a corporal and two troopers of the Department of Public Safety, and a justice of the peace were also on hand. The Industrial Steel Workers Union, CIO, had distributed its literature and matches at the plant of Weirton Steel a number of times before without interference and evidently without sought publicity. On this occasion they had three teams of five men each who were to alternate, each team working the gate on relays of fifteen minutes until a period of one hour and a half had been covered. The testimony of the State is to the effect that when the first team went on duty there was a crowd, probably fluctuating, estimated to have been between one hundred and two hundred and fifty people in the immediate vicinity of the Number 5 gate. They went to the pedestrian entrance, about five feet wide between the wall around the grounds of the plant, and a gate *Page 482 house manned by company police for the purpose of identifying those entering the plant. They blocked the pedestrian entrance so that some of the employees going in or out were obliged to force their way through, and offered CIO literature, at the same time exclaiming: "Be an American." "Join the CIO." "Don't be a company stooge." If the employees going into or leaving the plant refused to accept their printed matter they forced it under the employee's arm or into the pocket of his coat, using imprecations such as "yellow bastard", "son of a bitch" and "piss on you".
It was then that the justice of the peace near the entrance read his so called proclamation declaring the assembly to be unlawful and commanding it to disperse. According to the State's evidence it was read in a clear and audible tone and in addition copies of it were posted at several conspicious places near the entrance of the plant by the Sheriff of Hancock County. It is clear that each of the three teams of five men were informed of the magistrate's command to disperse and that before they were arrested they refused to do so.
As contrasted to the testimony of the State, that of the defendants is to the effect that they offered CIO leaflets to the employees leaving and entering the plant, saying: "Have a leaflet, sir", and if the employee declined to accept the printed matter he was permitted to pass without molestation of any sort. They deny that they used any other form of address, say that they called no names, used no vulgarity, and did not try to force their literature into anyone's possession. They further testify that the gathering at the gate of the plant, excluding employees who were going in or out without stopping, did not exceed eighteen or twenty persons. On this clear cut issue of fact the jury believed the testimony of the State. The case as to the sufficiency of the evidence then comes here on the question of whether the testimony of the State, disregarding that of the defendants that conflicts therewith, is sufficient to prove an unlawful assembly in which the defendants participated. The decision *Page 483 of that question, to my mind, involves also the decision of what effect, if any, is to be given to a judge's or justice's command to disperse under Code, 61-6-1.
Our statute does not define riots, routs or unlawful assemblies but permits the penalties attached to each to rest upon the common law offense, making it the mandatory duty of judges and justices "* * * to go among, or as near as may be with safety, * * *" persons forming gatherings of that sort and command them to disperse. The statute furthermore makes it a misdemeanor for a judge or justice having notice of an unlawful assembly to fail to proceed immediately to the scene and exercise his authority.
There is nothing novel nor experimental concerning this duty imposed upon judges and justices of the peace to suppress unlawful assemblies. Even the early statutes did not create the offense nor define it. They dealt entirely with the question of enforcing the common law and as early as the reign of Henry IV (1399-1413) an English statute expressly provided that the command to disperse should be accepted as conclusive proof of the fact that the assembly was unlawful. Statutes, 13 Hen. 4 Ch. VII. This was followed by an early Virginia statute to the same effect. 12 Hening's Statutes Ch. XLV-III (1786). Our statutory provision, borrowed from the Virginia Code of 1849, now omits the provision of the effect to be given to the command to disperse. It simply makes it a mandatory duty of the named officers and imposes a penalty upon the failure to perform by either a judge or justice of the peace. As I view the provisions of Code, 61-6-1, it was certainly not the legislative purpose to require judges and justices of the peace to confront a recognizedly hazardous situation for the purpose of there making a futile gesture. Consequently, I believe that although the omission of the provision treating the command as conclusive proof of an unlawful assembly undoubtedly now precludes the courts from so regarding it, the provisions of the act make it quite apparent that it is still the legislative purpose to attach some consequence *Page 484 and some effect to the act performed, as is indicated by the power conferred upon the judge or justice to order arrest without warrant as for a misdemeanor committed in his presence and to commit to jail in the absence of a recognizance to appear before the court having jurisdiction of the offense. Upon a prosecution and trial, in my opinion, certainly some probative value must be attached to the command to disperse on the ground that the assembly is unlawful. The only manner in which that can now be satisfactorily done is to treat it as creating a rebuttable presumption. Otherwise the mandatory provision of the statute is meaningless. In this particular case, in the absence of proof on the part of the State other than the command to disperse by a justice of the peace and the failure to comply, the testimony of the defendants would likely have been sufficient to overcome such a presumption. But with the State's evidence directly contradicting that of the defendants in every detail material to the issue, followed by a verdict of guilty and sentence by the trial court, I am convinced that a reversal is a miscarriage of justice that will bring about less respect for the law and for its officers.
Of course, if the purpose of the teams of five men each was to distribute their literature in an orderly and peaceful manner, as indicated by the testimony of the defendants, the assembly was not unlawful. On the other hand, if it was the purpose of three or more to distribute the CIO printed matter by standing at the narrow pedestrian gate so that those entering or leaving would be obliged to pass between them, forcing their way in or out by jostling and pushing, poking leaflets into the pockets and under the arms of those unwilling to receive them, accompanied by the use of opprobious epithets, then the assembly was unlawful. It does not matter what their purpose in coming to the plant was, if, after their arrival they acted in unison to achieve an unlawful purpose or a lawful purpose unlawfully. See 46 Am. Jur. 131.
As I view this case, the majority has made the mistake of treating it as a prosecution of CIO organizers unlawfully *Page 485 assembled. In most, if not in all, instances, an unlawful assembly is composed of partisans taking opposite sides of a controversial question. It must be of such a nature as to cause a sane, firm and courageous person to fear a breach of the peace. Certainly if the assembly now being considered by the Court had comprised only CIO field men there would have been little danger of their disagreeing and the danger of violence would have been considerably reduced. However, it did not, nor were the CIO workers the only ones commanded to disperse. The State's proof indicates that in addition to them there was a considerable gathering at the corner that did disperse upon the justice's command. So far as this record shows, the fifteen men were the only ones who refused categorically to obey the command to disperse. They did so because they were there under orders from their union superior that they regarded as paramount to those of a peace officer. They so stated. When the justice's proclamation was read and his command to disperse was made the gathering at the gate comprised, according to the State's proof, CIO workers as well as those being forced unwillingly, as described, to accept leaflets. That being so this is not a trial to determine who started the difficulty, who originated the trouble, or whether the original purpose was criminal, as, with all respect, I believe the majority is tangentially treating it. The opinion by the majority speaks of the trouble having been caused by "fault on both sides as between the two unions involved", and seems to reason that the conviction of the defendants should be reversed, at least in part for that reason. I believe that "fault on both sides" is exactly what can easily make an assembly unlawful. That being so, both sides, not simply those organizing the meeting of fifteen CIO workers, if, after being commanded to disperse they refused to do so, were guilty of unlawful assembly. Under the record before us, the fifteen defendants were the only persons refusing to disperse and depart after the assembly was declared by the justice of the peace to be unlawful. There is proof to the effect that the command to disperse was obeyed by *Page 486 everyone but them. Refusal to disperse makes everyone remaining a participant in an unlawful assembly. Under the statute a justice can command those present to assist him and upon their refusal they become rioters, equally guilty of any crime committed by others who refuse to disperse. That was done in this instance.
To sum up, I believe that the State's proof shows clearly that after reaching the scene the teams of five men each showed plainly by their conduct that they were there for an unlawful purpose, i. e., to force CIO leaflets upon employees of Weirton Steel unwilling to receive them; that this occurred at a very critical period of our war with Japan and Germany and when popular feeling was aflame with patriotism and keenly resentful of whatever might be construed as interfering with war production; that the partial blocking of the entrance to the plant, the cursing and the jostling, were sufficient to cause experienced peace officers, who are certainly to be regarded as sane, firm and courageous, to testify as a matter of established fact that serious breaches of the peace were to be feared; and that the justice's proclamation should be given probative value as at least fixing the common law essential of criminal intent and creating a rebuttable presumption of unlawful assembly. When those facts and principles are considered in connection with the fact that the CIO workers had notified newspapers in both New York and Pittsburgh of the day and hour of going to the gate of the Weirton plant and that then those newspapers were represented on the ground by reporters and photographers, there is certainly no room for regarding it as a usual occurrence. Neither can it be regarded as a contest between two labor unions, the CIO holding in utter contempt the so called "company union" as being an organization controlled and dictated to by the employer and used as an instrument by which it bargained with itself concerning wages and working conditions, and the members of Weirton Independent Union looking upon the active field men of the CIO as racketeers who made a comfortable living out of creating *Page 487 discord through jurisdictional strikes and who would lose their jobs if and when all employers and employees worked in harmony. That raw disagreement was, of course, the explosive factor at the No. 5 gate of Weirton Steel the afternoon of March 30, 1944. It was that, coupled with the stated overt acts done in a crowd, that Justice of the Peace Ferrari declared to be an unlawful assembly, commanded to disperse, and further commanded all present to assist him in arresting those who refused to obey, as provided by statute. What is referred to as the "so-called proclamation" of the justice of the peace preserved an accurate written record of what was in fact done by him. It called to a halt altercations and quarrels concerning local disagreements and told all who were informed concerning it that the refusal to disperse would be a criminal offense against the public interests. To my mind, giving it no probative effect and attaching to it no importance is directly in the teeth of both the wording and the history of the statute. As stated, I would hold that it creates a rebuttable presumption of an unlawful assembly, that that presumption has not been overcome in this case, and that the defendants below knowingly refused to obey the justice's command to disperse. I would therefore affirm the judgment of the Circuit Court of Hancock County.