(dissenting):
Martin Luther King, Jr. was assassinated on April 4, 1968. Following his death, several days of violent disorder swept the Negro areas of many cities, including Washington, D. C. This case arises out of an incident which occurred during Washington’s “April Riots.”
Testimony by five police officers and the appellant in this case, Charles Matthews, established that at about 8:00 P.M. on April 5, the second night of the disorder, violence had engulfed the vicinity of Eighth and I Streets in the Southeast section of Washington. A fire was apparently burning in the 700 block of Eighth Street, the sirens of fire engines and police cars were blaring, people were milling about, and several establishments along Eighth Street were being looted. One of these was Eddie’s Liquor Store at the corner of Eighth and I Streets.
At this point, however, agreement ends, and the testimony conflicts sharply about the circumstances surrounding appellant’s arrest. The arresting policeman, Officer Harrison, testified that he saw appellant inside Eddie’s Liquor Store and arrested him “at the entrance” of the liquor store (on Eighth Street) “crossing the threshold of the door” with a paper bag containing liquor bottles.1 Testifying in his own defense, appellant strenuously denied that he had entered Eddie’s Liquor Store. He testified that he was in the area looking for his wife. According to his story, he walked up I Street, crossed Eighth Street, and continued up I Street. As he passed Eddie's Liquor Store on I Street, he noticed several bags and bottles of liquor in the yard at the side of the store. Appellant testified that he picked from the yard a bag containing several bottles and then proceeded up I Street where he was arrested several minutes later.
Appellant was subsequently charged with second degree burglary,2 petit larceny,3 and engaging in a riot.4 During the trial, appellant requested the trial judge to instruct the jurors that, if they believed his story, they must find him not guilty of engaging in a riot. Although the trial judge found the question “close,” he declined to give such an instruction. Rather, he gave the standard instruction which the District Court has developed 5 for charges under the District of Columbia riot statute. The jury acquitted appellant on the burglary charge, indicating at least the possibility they believed his testimony that he did not enter the liquor store, but found him guilty of petit larceny and engaging in a riot. On this appeal, appellant challenges only his conviction under the D. C. riot statute. He makes a frontal attack on the statute, urging that it violates both the First Amendment and the Due Process Clause of the Fifth Amendment. Alternatively, he argues that, if the statute is narrowly construed to save it from constitutional attack, then it does not reach the conduct described in his version of the events in this case. Under these circumstances, he contends that the trial court’s failure to so instruct the jury was reversible error.
The majority disagrees with both of these contentions. It holds the D. C. riot statute to be constitutional, and then interprets it to reach even appellant’s own version of his conduct. I find, however, that the D. C. statute as interpreted by the majority goes substantially beyond both the common law crime *1187of riot and most state riot laws.6 The fact that no other court has upheld so broad a statute raises serious doubts about the constitutionality of the majority’s expansive interpretation.7 In my view, the statute’s plain language, construed in accordance with well accepted principles of statutory construction, properly leads to a narrower interpretation of the law.8 Although the question remains a close one, I believe that the D. C. riot statute, so construed, is constitutional.
I agree with appellant, however, that the statute, when properly interpreted, does not reach the conduct which he alleged was the extent of his involvement in the April Riots. The trial court’s failure to give the instruction requested by appellant was, therefore, error. I would vacate the conviction and remand the cause for a new trial.
I
Until 1967, the District of Columbia dealt with riot situations through statutes prohibiting unlawful assembly and disorderly conduct.9 In addition, the other substantive criminal provisions of the District of Columbia Code left District officials far from defenseless against riotous disorders. Nonetheless, in response to the severe riots which swept the ghetto neighborhoods of many American cities in the summer of 1967, Congress enacted the D. C. riot statute as part of the District of Columbia Crime Act10 in December 1967. The portion of the statute relevant to this appeal provides:
“(a) A riot in the District of Columbia is a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.
“(b) Whoever willfully engages in a riot in the District of Columbia shall be punished by imprisonment for not more than one year or a fine of not more than $1,000, or both.”11
There are two broad questions involved in interpreting this statute. First, what constitutes “violent and tumultuous conduct or the threat thereof [which] creates grave danger of damage or injury to property or persons”? Second, to what degree must an individual be involved in such conduct to be convicted under the statute?
I begin by spelling out my understanding of the majority’s position on both questions. The majority considers the issue of the violence required to invoke the statute in the light of what it finds to be the congressional purpose to address “riotous situations * * * similar to those which had afflicted cities such as Newark and Detroit * * Thus the majority opinion finds that the violent conduct reached by the statute suggests “an aura of reprehensibility,” and “incendiary conditions in the streets”:
“ * * * The Congressional focus was, it is clear from the legislative history, upon mindless, insensate violence arid destruction unredeemed by any social value and serving no legitimate need for political expression.”
Majority opinion at 1182.
I take these various characterizations to be an interpretation of the “grave danger of damage or injury” which must be present before this statute can be invoked. The statute is unclear whether “grave” applies merely to the danger of damage or whether it also applies to the amount of damage which must be caused or threatened. I take the majority’s holding to be that there must be a clear and present danger of severe damage or injury to bring the D. C. riot statute into play.
*1188I can, however, extract no enforceable or meaningful limitations beyond this requirement from the majority’s language quoted above. As the majority appreciates, this statute operates in the area of First Amendment freedoms. It would blink reality not to realize that what begins as a political or social demonstration may end violently,12 and the violence may come from some of the demonstrators, from counter demonstrators, or from officials.13 Indeed, the demonstrations which followed the death of Dr. King began peacefully. On hearing of his assassination, people simply came out into the streets to grieve together in public, to mourn the loss of their religious, political and social leader, and to condemn his murder.14 The violence which followed was the work of relatively-few of the demonstrators. Yet an expansive reading of the riot statute here would place in jeopardy the liberty of any demonstrator on the street who happened to witness the violence. The chill which such jeopardy would place on the exercise of First Amendment rights is just as obvious as the unconstitutionality of any statute which provides such a deterrent.15
Therefore, I find little comfort .in the majority’s declaration that the statute applies only to mindless, insensate violence unredeemed by social need or legitimate political expression. In my judgment, society has a right to prevent destructive violence regardless of the context in which it occurs. But society has no right ,to suppress peaceful political protest. Recognizing that the exercise of First Amendment rights, particularly by minorities, often results in violence, the only way to protect legitimate activity is to insure that our laws focus precisely and exclusively on violent conduct and on its perpetrators and not beyond. And it is here that, in my judgment, the majority falters in its interpretation of the D. C. riot statute.
While I find the majority’s requirement that the violent and tumultuous conduct must threaten serious damage or injury a step in the right direction, its interpretation of the degree to which an individual must be involved in such conduct moves dangerously in the wrong direction. The majority opinion finds that the riot statute may properly apply to a person who has done no violent or tumultuous act himself. Specifically, in appellant’s case it holds that one who, though acting independently and nonviolently, picks up apparently abandoned looted goods has “engaged in” a riot because his conduct “aids or encourages” the violence and tumult which the statute expressly punishes. Thus the majority first reads out of the statute any element of concerted action16 and then reads into its coverage anyone who unintentionally 17 “aids and encourages.” Al*1189though the majority opinion does not spell out the full implications of its theory, it seems clear that non-violent petit larceny is not the only activity which could be said to “aid and encourage” violent and tumultuous conduct.
The majority’s interpretation seems to me to offer no sure guides to anyone for determining which conduct will violate the D. C. riot statute. It is impossible, in my judgment, to define precisely what activity “aids or encourages” 18 violence *1190when there is no concert of purpose or common intent. In the present case, appellant testified that he picked up a bag containing liquor bottles and kept walking, anxious to get away from the scene of the disorder. Since appellant’s version of the facts must be accepted as true in testing the propriety of his requested instruction, there is no evidence of common purpose, intent to aid or encourage violence, or unusual behavior on the part of appellant.
Some reliance is placed by the majority upon the fact that appellant’s act was larcenous. Unfortunately, no explanation is provided of the significance of that fact.19 Will any violation of any law be sufficient to support a conviction under the riot statute ? Both littering 20 and walking in the street21 are crimes in the District of Columbia. Moreover, both crimes are apparently typical of riotous activity. Under .the majority’s standard, could people who engage in these crimes be said to have aided and encouraged the violence which occurs during a disorder ?
I raise these considerations only to emphasize the uncertainty of the majority’s standard. In my judgment, it has provided no objective guides for determining what constitutes unconscious aid or encouragement as it uses those concepts. Certainly the majority’s holding that concert of action is not required to violate the statute does not make the aider and abettor principle applicable to one who unintentionally “aids and encourages.” 22 I turn, therefore, to consider the constitutional implications of the majority’s conclusions.
II
A. Initially it is useful to note the ways in which this statute is significantly broader than either the common law crime of riot or most state riot statutes. First, the D. C. statute does not include the common law requirement23 of a common purpose or intent on the part of the rioters — a requirement that is also present in many state riot statutes.24 This element of the crime was apparently dropped in order to deal with modem ghetto riots which have generally in*1191volved spontaneous acts by unallied individuals.25
Second, an act does not have to be independently prohibited by the criminal law in order to violate the D. C. riot statute. Several state riot statutes require that conduct be criminal independent of the riot statute before a person can be convicted of rioting.26 One state law revision commission has specifically noted the usefulness of such a requirement as a device to limit the reach of a rio.t act.27
Finally, it is unclear from the statute whether an individual charged under it must himself do a violent or turbulent act.28 The common law offense of riot did contain such a requirement, as do many state riot laws.29 But if the D. C. statute is unclear, the majority’s holding, as noted above, is not. Its interpretation removes any requirement that a defendant personally engage in violent or tumultuous conduct.
As interpreted, therefore, this statute does not require a common purpose, does not require that actions violating the statute be independently criminal, and does not require that the defendant himself commit violent or turbulent acts. Counsel have cited no cases, and I have found none, upholding the constitutionality of a riot statute which contained none of these clarifying and limiting provisions. In recent years, numerous three-judge District Courts have passed on the constitutionality of various state riot and unlawful assembly statutes. But in each case where the statute was upheld, the court found or read in one or more of these protective provisions.
In upholding the constitutionality of the Pennsylvania riot act, the three-judge District Court relied completely on the fact that the Pennsylvania courts had consistently given the potentially vague statute its common law meaning.30 Moreover, the Pennsylvania courts apparently required that persons do an unlawful act of violence and act with a common intent in order to be convicted.31 Similarly, a three-judge District Court upheld three sections of the Illinois Mob Action Statute against a constitutional challenge by reading the statute to require both (1) use of force or violence by the defendant, and (2) a common intent on the part of the assemblage.32 Another three-judge court, in Carmichael v. Allen,33 declined to enjoin a prosecution under the Georgia riot statute because the Georgia act “has been limited by several holdings of the Georgia courts solely to acts of violence by two or more persons acting in con*1192cert.” 34 The Missouri Unlawful Assembly Statute was also held to be constitutional by a three-judge court.35 But to avoid constitutional problems, the court construed .the statute to require “that the persons involved have a specific intent, by force or violence, to do unlawful [criminal] acts.” 36 Thus I find no support for the majority’s holding in any federal or state cases involving state riot laws.37 The heavy reliance in these cases upon the safeguards discussed above — indeed the fact that the courts were at pains to read these restrictions into the statutes — gives rise to an inference that a statute without any of these limitations is constitutionally suspect. Following the lead of these cases, I submit that the D. C. riot statute should be read narrowly to avoid the constitutional problem, not expansively to cover this case.
B. The evolution of the constitutional doctrines of vagueness and overbreadth reflects a number of distinct concerns. Foremost among these, as the Supreme Court has repeatedly emphasized, is the danger which vague statutes pose in their potential for deterring the exercise of constitutional rights.38 Even if the statute does not explicitly proscribe constitutionally protected conduct, the uncertainty of the line it draws may deter men from exercising their rights. The self-enforcing character of vague statutes — the simple existence of such a statute may deter, unaided by any further step on the part of government — has led the Supreme Court to test vague statutes “on their face” to determine whether they chill constitutional rights.39
Traditionally, the Supreme Court’s concern with the chilling effect of vague statutes has focused on First Amendment freedoms.40 Unaided by a narrowing interpretation, or by any of the limiting safeguards discussed in Part II-A above, the D. C. riot statute clearly seems capable of deterring the basic right of freedom of assembly. On its face, the statute applies to all assemblies of five or more people involving violence or the threat of violence, which creates a risk of serious harm.
Some cases have suggested that a statute which requires violence before it can be invoked should be approved because the constitutional guarantee applies only to peaceable assembly.41 That rule seems *1193proper where the statute applies only to those who actively engage in serious violence ; such conduct is clearly not constitutionally protected and not to be condoned. But, as noted above, the statute presently before us is not, as the majority opinion interprets it, so limited. The only explicit requirement imposed by the D. C. statute is that .there be serious violence or the threat of it somewhere in the assemblage. By not explicitly limiting its sanction to those directly engaged in violence or intentionally encouraging it, the statute may easily deter people from attending an assemblage at which violence might occur.42 People would reasonably fear being swept up and arrested indiscriminately even if violence was perpetrated by outsiders or by other members of the assémbly.
This danger is not averted solely by a requirement that the assemblage involve violence. Nor is it averted or lessened by the majority’s requirement that a person “aid or encourage” the violence. The vagueness of this requirement offers no substantial guarantee of protection to an innocent, non-violent participant in the demonstration.43 The majority opinion does, of course, assert that its interpretation does not reach the mere bystander or curious onlooker. But the problem is the person who in the exercise of his rights is a conscious, active participant in a demonstration. If violence erupts, has he aided and encouraged it merely because he was a participant in what was to have been a peaceful demonstration ? I submit that the vagueness of this requirement, and the fine distinctions which must, of necessity, be drawn in order to apply it, can easily deter the exercise of First Amendment freedoms. In my view, the constitutionality of the majority’s interpretation is open to serious doubt on .this count alone.
In addition to chilling the exercise of such First Amendment rights, the vagueness of the D. C. riot statute as interpreted seems likely to deter the exercise of other constitutional rights, such as freedom of movement, sometimes called the right to travel,44 even in one’s own neighborhood. Mr. Justice Douglas, writing for the Court in Kent v. Dulles,45 emphasized
“how deeply ingrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. * * * ”46
It is well to remember the setting in which this recent wave of disorders has occurred.47 Almost uniformly, they are focused in poverty-stricken Negro resi*1194dential neighborhoods. The stores which are looted and burned are local stores, often with residences in the upper floors of the buildings which they occupy. It is neither unusual nor improper for there to be large numbers of people in the vicinity : they live there. Moreover, most of these neighborhoods are desperately overcrowded; on the ho.t summer days and nights on which disturbances typically occur, it is natural that many people are out on the stoops or in the streets. Travel to work and to food stores brings others outside into the streets. Finally, as reports of rioting, shooting and arrests are heard, men and women in the affected areas often go out in search of members of their families who they fear may have been caught up in the maelstrom.48 One recent riot study found that about 50 per cent of people arrested on riot-related charges were arrested within five blocks of their homes; more than three quarters were arrested within 20 blocks of their homes.49
In appraising the vagueness of the D. C. riot statute, it should, therefore, be understood that the law may often apply to people in their own neighborhoods. Its vagueness and failure to regulate conduct precisely threatens people with arrest merely for going outside their homes, even for legitimate purposes. Individuals may properly fear that exercise of their rights peacefully to use the public streets to obtain food, to go to work, or to locate their families will expose them to arrest on a serious criminal charge.
The vagueness of the D. C. statute also produces other evils. It virtually eliminates the possibility of review of the actions of judges and juries. The vague standard of 'guilt articulated by the statute, and by the majority opinion in this case, “licenses the jury to create its own standard in each case.” 50 This problem derives essentially from the failure to spell out the necessary connection between the individual’s actions and the assemblage’s violence. What are the standards by which the policeman, the prosecutor, the judge and the jury are to determine whether an individual’s conduct tended to “encourage” violence? The jury seems to be turned loose to speculate on the connection between the defendant’s conduct and the violence admittedly wreaked by others in the assemblage.
The present case demonstrates the danger. If the jury believed appellant’s story, then, on the majority’s interpretation, it had to answer the question whether picking up a bag of liquor, at the side of a store, off the street from where the main action was occurring, “aided or encouraged” the violence going on there. There was, of course, no evidence introduced that anyone saw appellant pick up the liquor or that he did it in an ostentatious or flagrant manner. His testimony, that he wanted to get away from the store quickly, would tend to indicate the reverse. It is entirely possible, therefore, that on this state of the record the jury simply speculated about the relationship of the defendant’s conduct to the violence on Eighth Street. Particularly in this type of case, where the very charge of rio.t is likely to inflame deep feelings, the courts must assess carefully the guidelines provided to *1195a jury. The wide-ranging 'discretion handed the jury under this statute, as interpreted, seems extraordinarily unrestricted and peculiarly dangerous.
Similar dangers inhere in the potential for discriminatory and prejudiced exercise of authority by police and prosecutor under such a statute. It appears that at the time of the riots in the District of Columbia the prosecutor exercised the broad discretion given to him under this statute with restraint.51 But under a government of written law, defendants have never been consigned to the tenuous and transitory protection of the wisdom of prosecuting officials.52 The discretion that today is wisely employed may become the basis of prejudice and discrimination tomorrow. Moreover, innumerable studies of civil disorders in Negro communities have demonstrated that those disorders are in large measure due to the abuse of discretion by law enforcement officials.53 Yet in the very statute dealing with .these disorders which so sharply and violently demonstrate the legacies of the past, the majority opinion would once again countenance virtually unbridled discretion on the part of police and prosecutor. Given such a broad and general mandate, it seems possible for any person arrested on any grounds during a disturbance to be charged under this statute. Without some objective standards, the prosecutor will be in a position to charge persons arbitrarily, the jury will be able to convict or not depending entirely on extralegal considerations, and an appellate court will be able to do little to supervise or control such a process.
Ill
In view of these constitutional considerations, I would interpret this statute by strict adherence to the statutory language enacted by Congress.54 To violate the Act a person must “engage in a riot.” According to Webster’s Third New International Dictionary, “engage” means to “employ or involve oneself,” “to take part.”55 With reference to violence, *1196Webster’s defines “engage” as meaning “to enter into conflict,” to “join battle.”56 Thus the usual meaning of “engage” denotes active and full participation and involvement in an activity, not mere unwitting aid or encouragement.57
When the Act’s Section (b) requirement that a person “engage in a riot” is read in conjunction with Section (a)’s definition of a riot, the statute requires that a person “engage in” a
“public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.’ ” 58
At a minimum, the statute requires that a person “engage in” a public disturbance. Given the meaning of “engage” as well as cases interpreting disorderly conduct statutes,59 I think it quite clear that a person’s own conduct should have to amount to a breach of the peace in order to qualify as “engaging” in a public disturbance. The word “involving” leaves ambiguous, however, the question whether the'conduct required by the statute must not only be a breach of the peace but must also be violent and tumultuous conduct which poses the required threat of harm. Here I am swayed by four factors: (1) the use of the word “engage” with its connotation of full and complete immersement in an activity; (2) the exclusion from the statute of .the common law element of common purpose and intent; (3) the severe constitutional problems posed by this statute in the absence of some objective limits to its reach; and (4) the accepted axiom that criminal laws are ,to be strictly construed. I would, therefore, read the statute to require proof that the defendant was guilty of “violent and turbulent conduct” which constitutes a breach of the peace and poses a clear and present danger of serious property damage or serious personal injury. I submit that my view is more faithful to the statutory language and much less beset with serious constitutional problems than the majority’s expansive interpretation.
Under my reading of the statute, it is clear that appellant’s account of his conduct could not be brought within its .terms. Therefore, he was entitled to have the jurors instructed that, if they *1197believed his story, they had to return a verdict of not guilty on the riot count, Since the trial court denied his request for such an instruction, I believe appellant is entitled to a new trial.
I respectfully dissent.
. Three other police officers were with Officer Harrison at the time of the arrest; only one confirmed the identification of appellant as a man arrested coming out of Eddie’s Liquor Store.
. 22 D.C.Code § 1801(b) (Supp. II 1969).
. 22 D.C.Code § 2202 (1967).
. 22 D.C.Code § 1122(b) (Supp. II 1969) (hereafter referred to as the D.C. riot statute).
. The full text of the instruction is set out in the Appendix to the majority opinion.
. See Part I infra.
. See Part II infra.
. See Part III infra.
. 22 D.C.Code §§ 1107, 1121 (1967).
. Pub.D. 90-226, 90th Cong., 1st Sess., 81 Stat. 734 (1967).
. 22 D.C.Code § 1122(a) and (b) (Supp. II 1969).
. For a careful historical and comparative analysis of violence associated with various political and protest movements, see the two-volume study prepared for the National Commission on the Causes and Prevention of Violence, H. Graham & T. Gurr (eds.), Violence in America: Historical and Comparative Perspectives (1969). Perceptive commentary on the frequency with which violence has accompanied American protest movements is provided by another task force report to the Commission, J. Skolnick, The Politics of Protest (1969).
. See, e. g., D. Walker, Rights in Conflict (1968). Compare Terminiello v. City of Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).
. See, e. g., B. Gilbert, Ten Blocks from the White House 14-15 (1968) ; compare Comment, Criminal Justice in Extremis: Administration of Justice During the April 1968 Chicago Disorder, 36 U.Chi.L. Rev. 455, 467 (1969).
. See Keyishian v. Board of Regents, 385 U.S. 589, 601-602, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Cox v. Louisiana, 379 U.S. 536, 551-552, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).
. See majority opinion at 1180 n. 5.
. The majority does not explicitly address the question whether appellant had to “intend” to encourage violence and tumult by his actions. But I think the opinion unmistakably implies that a person may be convicted under the D.C. riot statute if his actions are found to “aid and encourage” the violence even though he does not intend to do so.
*1189It is true that the majority refers to the District Court’s theory that
“one may ‘engage in’ violent or tumultuous conduct by knowingly and intentionally aiding or encouraging it ‘by acts, gestures or words’ * *
Majority opinion at 1183 (emphasis added). But the majority immediately abandons that formulation in favor of an even broader reading of the statute which permits a “larcenous act” to be punished as riot solely because of the circumstances under which it is done and, apparently, without regard to the intent of the actor. Furthermore, the majority apparently finds a congressional intent — although it cites no support for its finding — that conduct such as appellant’s will be “deemed” to have aided and encouraged violence. Ibid. Clearly under this formulation, a finding that the actor intended to encourage riot is not necessary. As a final indication that the intent of appellant is irrelevant to the majority’s interpretation, the majority explicitly characterizes appellant’s conduct as “foolish greed” — a characterization hardly consistent with a conscious intent to encourage violence. Thus, in my judgment, the entire thrust of the opinion suggests that no such intent need be found to sustain appellant’s conviction.
Moreover, in this case I believe the majority is required to take this position in order to affirm appellant’s conviction. There is no evidence that could sustain a finding of fact beyond a reasonable doubt that appellant intended to encourage violence, if we accept appellant’s version of the facts as true. In fact, the only reasonable inference to be drawn from appellant’s testimony is that he desired to leave the area with his package as quietly as possible and to have no impact at all on the surrounding events. Any other conclusion, based solely on appellant’s version of the facts, would be complete speculation. Of. Thompson v. City of Louisville, 362 TJ.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960).
. In addition to the problem of intent discussed in Note 17, I have another difficulty with the scope of the majority’s interpretation : must the Government offer proof, and must the jury find, that appellant’s conduct in fact encouraged violence? Portions of the majority opinion seem to create a presumption that activity such as appellant’s encourages violence, thereby dispensing with the need for any proof on the question. Specifically, the majority argues that picking up and carrying away looted goods encourages and aids the tumult and violence condemned by the statute in the following ways: (1) it attracts people to the scene; (2) it harasses the police and diverts them from more compelling tasks; (3) it identifies the individual with the climate of violence and turmoil; and (4) it tempts others to engage in similar, or in violent, actions. I find it unclear whether these propositions are intended as findings of fact on the basis of the record in the present case, or whether they are intended, as in the case of legislative findings, to apply in all cases brought under the D.C. riot statute. In my view, there is no evidence in appellant’s version of the facts which could support these findings on the basis of the present record.
Thus it seems that the majority rules as a matter of law that activity similar to appellant’s is presumed to “encourage” tumult and violence without any need for proof (1) that anyone saw it, (2) that anyone was in fact encouraged by it, and (3) that violence or tumult occurred or increased following appellant’s act. The precise effect of this presumption would be that appellant’s action in picking up the bag of liquor would be “deemed” sufficient evidence that appellant “encouraged” violence. If the majority intends to create such a presumption, I believe serious constitutional problems are raised. See Leary v. United States, 395 U.S. 6, 32-36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969). Moreover, it is singularly inappropriate, in my judgment, for an appellate court to create statutory criminal presumptions since it is ill-equipped to undertake the necessary investigation and research. The Leary Court threw out a presumption — written into the Marihuana Tax Act by Congress — which authorized the jury to infer from a defendant’s possession of marihuana that the drug was illegally imported into the United States and that the defendant knew of the illegal importation. And the Court invalidated this presumption despite its holding that *1190“the congressional determination favoring [a] particular presumption must, of course, weigh heavily.” 395 U.S. at 36, 89 S.Ct. at 1548. In the present case, if such a presumption is created it is created by the court and not by Congress, and I find it seriously vulnerable to constitutional attack. See generally Note, The Constitutionality of Statutory Criminal Presumptions, 34 U.Chi.L.Rev. 141 (1966).
. Neither the statutory language nor the majority’s interpretation restricts the reach of the D.C. riot statute to acts which violate other laws. Rather, the majority’s formulation focuses on the question whether conduct “aided or encouraged” violence. Therefore, the fact that appellant’s act was independently illegal is apparently relevant only to the extent that it bears on that question.
. 1 D.C.Code § 224 (1967).
. D.C. Traffic & Motor Vehicle Regulations, Part I, § 56(a) (1966).
. See United States v. Garguilo, 2 Cir., 310 F.2d 249, 253 (1962); Cooper v. United States, 123 U.S.App.D.C. 83, 87, 357 F.2d 274, 278 (1966); Bruce v. United States, 126 U.S.App.D.C. 336, 340, 379 F.2d 113, 117 (1967).
See also Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-770, 93 LDd. 919 (1949) : “In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ L. Hand, X, in United States v. Peoni [2 Cir.], 100 F.2d 401, 402 [1938].”
. For the classic definition of riot at common law, including the requirement of common intent, see 4 W. Blackstone, Commentaries *146 (1854) ; 46 Am. Jur. Riots and Unlawful Assembly, §§ 8, 11 (1943), and cases cited therein.
. See, e. g., Calif.Penal Code § 404 (1872) ; 38 Ill.Ann.Stat. § 25-1 (1961) ; 21 Okla.Stat.Ann. § 1311 (1910). See generally Hearing on Anti-Riots before Subcommittee No. 4, House Committee on the District of Columbia, 90th Cong., 1st Sess., 30-65 (1967).
. See majority opinion at 1182 n. 5; National Advisory Commission on Civil Disorders, Report 7, 9 (1968).
. E. g., Mo.Ann.Stat. § 562.150 (1959), construed in Rollins v. Shannon, E.D.Mo., 292 F.Supp. 580 (1968) (three-judge court); Fla.Stat.Ann. § 870.02; Page’s Ohio Rev.Code Ann. § 3761.13; Vernon’s Texas Penal Code, Art. 455.
. See Mich.Rev.Crim.Code § 5510(1) (1967), discussed in Comment, Michigan Revised Criminal Code and Offenses Against Public Order, 14 Wayne L.Rev. 986, 1000 (1968).
. See Part III infra.
. E. g., 38 Ill.Ann.Stat. § 25-1 (a) (1) (1961).
. Heard v. Rizzo, E.D.Pa., 281 F.Supp. 720, 739, affirmed mem., 392 U.S. 646, 88 S.Ct. 2307, 20 L.Ed.2d 1358 (1968).
. Id. at 739-740.
. Landry v. Daley, N.D.Ill., 280 F.Supp. 938, 954-955 (1968). Both the plaintiff and the defendant in Landry appealed the decision to the Supreme Court. Plaintiff’s appeal, involving the three-judge court’s holdings on the Illinois Mob Action Statute discussed in text, was dismissed on procedural grounds. Landry v. Boyle, 393 U.S. 220, 89 S.Ct. 455, 21 L.Ed.2d 392 (1968) (failure to file appeal within allowed time). The Court has noted probable jurisdiction on defendant’s appeal involving issues not relevant to the present case. Boyle v. Landry, 393 U.S. 974, 89 S.Ct. 442, 21 L.Ed.2d 436 (1968).
. N.D.Ga., 267 F.Supp. 985 (1967).
. Id. at 996 n. 10a.
. Rollins v. Shannon, supra Note 26.
. Id. at 591.
. I have not considered any cases involving statutes proscribing incitement to riot since appellant is not charged with incitement pursuant to § (c) of the D. C. riot statute, 22 D.C.Code § 1122(c) (Supp. II 1969).
. “ * * * To give these freedoms the necessary ‘breathing space to survive,’ * * .* the Court has modified traditional rules of standing and prematurity. * * * We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the ‘chilling effect’ upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”
Walker v. City of Birmingham, 388 U.S. 307, 344-345, 87 S.Ct. 1824, 1844-1845, 18 L.Ed.2d 1210 (1967) (dissenting opinion of Mr. Justice Brennan). See Key-ishian v. Board of Regents, supra Note 15; Cox v. Louisiana, supra Note 15; Baggett v. Bullitt, 377 U.S. 360, 372-373, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).
. See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L. Rev. 67, 96-97, 109 n. 224 (1960).
. See generally Note, The Chilling Effect in Constitutional Law, 69 Colum.L.Rev. 808 (1969) ; cases cited Note 38 supra.
. See e. g., Landry v. Daley, supra Note 32, at 950: “ [Demonstrations lose their constitutional protection if the participants engage in violence.” Any individual who personally engages in illegal violence may, of course, be arrested and punished. The question, however, is whether all participants in a demonstration may be prosecuted because some of their number become violent. Twenty years ago the Supreme Court, clearly troubled by the issue, expressly reserved decision on this question:
“ * * * [W]e are not called upon to decide whether a state has power to incriminate by his mere presence an *1193innocent member of a group when some individual without his encouragement or concert commits an act of violence. * * *»
Cole v. Arkansas, 338 U.S. 345, 352, 70 S.Ct. 172, 176, 94 L.Ed. 155 (1949) (opinion of Mr. Justice Jackson).
. The Supreme Court, of course, has often noted the necessity for careful and precise regulation in statutes affecting First Amendment freedoms ; “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).
. Compare the situation of a person who desires to be an active participant in a demonstration where violence might occur with that of a person who desires to be a member of a political organization which might have illegal aims and goals. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Scales v. United States, 367 U.S. 203, 224-228, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961).
. See the full discussion of the right to travel in Shapiro v. Thompson, 394 U.S. 618, 629-631, 89 S.Ct. 1322, 22 L.Ed. 2d 600 (1969).
. 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed. 2d 1204 (1958).
. 357 U.S. at 126, 78 S.Ct. at 1118.
. See, e. g., National Advisory Commission, op. cit. supra Note 25; B. Gilbert, op. cit. supra Note 14; R. Conot, Rivers of Blood, Years of Darkness (1967).
. For example, one recent study of the women arrested in connection with Washington’s April Riots found that most were not outside bent on illegal errands, particularly those arrested for curfew violations. Miller, The Woman Participant in Washington’s Riots, 33 Federal Probation 30, 33 (June 1969). Even those who looted often could not be compared with ordinary criminals:
“ * * * One woman [looter] * * * always did her weekend shopping after work on Friday at the only large grocery in her neighborhood. The store was being looted when she arrived. She explained that she was faced with the choice of not looting and not having any food for the weekend or taking what she ordinarily would have purchased.”
Ibid.
. Comment, supra Note 14, 36 U.Chi.L. Rev. at 493.
. Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066 (1937).
. See majority opinion at 1183 n. 10.
. In fact, the existence of great discretion in the hands of executive officials in areas affecting First Amendment freedoms has often been condemned by the Supreme Court. See Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958).
. «* * * [D]eep hostility between police and ghetto communities [was] a
$ $ $ $ &
primary cause of the disorders surveyed by the Commission. * * *
¡Í! V V
“The policeman in the ghetto is a symbol not only of law, but of the entire system of law enforcement and criminal justice.
“As such, he becomes the tangible target for grievances against shortcomings throughout that system: against assembly-line justice in teeming lower courts; against wide disparities in sentences * *
National Advisory Commission, op. eit. supra Note 25, at 299.
. There is no legislative history to suggest that the statute’s language should be read broadly or accorded anything except its ordinary meaning. The D. C. riot statute was enacted as Title IX of the District of Columbia Crime Act of 1967. Title IX was not in the first version of the law passed by the House and was not considered by the full House Committee on the District of Columbia. 113 Cong. Rec. (Part 13) 17207-17209 (1967). While Title IX was in the Senate bill as recommended by the Senate District Committee, there was no debate of the provision on the floor of the Senate, 113 Cong.Rec. (Part 26) 36061-36079 (1967), and the Committee report urged its adoption in a generalized denunciation of “[r]ioting, burning, looting, and killing.” S.Rep. 912, 90th Cong., 1st Sess., at 26 (1967). The House subsequently concurred in the Senate version of the entire crime hill without any debate at all. 113 Cong.Rec. (Part 27) 36408-36409 (1967). The only reported hearings on the riot statute were held by a House subcommittee, and these brief hearings focused almost exclusively on the statute’s penalties and on its section which punishes inciting to riot. Hearing, supra Note 24.
. Webster’s Third New International Dictionary 751 (1961).
. Ibii.
. In arguing that the word “engage” is not vague, the Government pointed out that the word was used in other District of Columbia and federal statutes. The cases I have found interpreting “engage” in the context of these statutes all support a reading of the word which requires full participation and involvement. See, e. g., Stone v. District of Columbia, 123 U.S.App.D.C. 291, 359 F.2d 275 (1966) (defendant was personally committing breach of peace to “engage” in disorderly conduct under 22 D.C.Code § 1107); Dane v. United States, 57 App.D.C. 161, 18 F.2d 811 (1927) (defendant who arranged and collected admission fee to prize fight did not “engage in a pugilistic encounter * * * for money” but was guilty under aiding and abetting principles). In Landry v. Daley, supra Note 32, the court found that “engage” meant “to occupy, to employ, or to involve,” 280 F.Supp. at 956, and that being “engaged in” implied fuller involvement than being “a participant” in the same activity. Iid. at 957. See also Kelly v. Illinois Bell Telephone Co., N.D.Ill, 210 F.Supp. 456, 466 (1962).
. 22 D.C.Code § 1122(a) (Supp. II 1969).
. See Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. City of Chicago, supra Note 13; Baker v. Bindner, W.D. Ky., 274 F.Supp. 658, 663 (1967); Carmichael v. Allen, supra Note 33, 267 F.Supp. at 997-998. The draftsmen of the Model Penal Code have reached exactly the same conclusion set out in text. The Model Penal Code’s formulation of both disorderly conduct and riot statutes closely resembles the language of the D. C. riot statute. In the Comments to the Code’s provisions, the draftsmen explicitly note that the disorderly conduct statute “penalizes only behavior which is itself disorderly” and follow a similar policy in the Code’s riot provision. American Law Institute, Model Penal Code § 250.1, Disorderly Conduct; Riot, Comment 2 at 8 and Comment 6 (Tentative Draft No. 13, 1961). See also the cases cited therein.