Cohen v. State

²²⁰ Sloan, J., delivered the opinion of the Court. Harry Cohen, the appellant, was indicted on charges of inciting a riot and for riot in the City of Baltimore on the 12th day of December, 1936. There were six counts in the indictment, the first four charging Harry Cohen with inciting to riot; the fifth and sixth charging him, with divers other persons, with rioting. The defendant demurred to the indictment, and to each count.

The demurrer was sustained to the first and third counts, and overruled as to the others, and the adverse rulings on the demurrers require consideration before taking Up the bill of exceptions. Kendrick & Bros. vs. Warren Bros. Co., 110 Md. 76 , 72 A. 465 ; Kaefer v. State, 143 Md. 151, 160 , 122 A. 30 ; Code, art. 5, secs. 2, 86. The only objection to the second and fourth counts is that there is no time fixed for the commission of the offense of inciting riot, and this applies to the fifth and sixth counts, as well, on the theory that the time was only alleged in the first count, and that, the demurrer having been sustained, it took it bodily out of the indictment, and the statement of time in the remaining counts “on said day in said year” was not referable to the date stated in the first count.

The decision of the trial court on the demurrers to the first and third counts did not take them out of the record; it meant that the charge attempted to be made was not sufficiently alleged, and the defendant could not be tried on those counts. No authority was cited on this point, but, to reject it, it is only necessary to refer to 31 C. J. 680, secs. 209, 686-688, 217-223, and the cases there cited. The objection to the fifth and sixth counts was argued on the assumption by the defendant that it did not come within the definition of “riot,” and that, unless there was an indictment of three named defendants, the charge cannot be sustained. In some states the charge of riot is statutory, but in this state it is a common law offense.

The fifth count charged that “Harry Cohen, on the said day in said year, at the City aforesaid, together with divers persons to the Jurors aforesaid unknown, unlaw ²²¹ fully, riotously and tumultuously, did assemble and gather together to disturb the peace of the said City and State; and then and there being so gathered together, did make a great noise, riot, tumult and disturbance, and then and there unlawfully, riotously and tumultuously remained and continued together for a long space of time, to wit, for the space of fifteen minutes and more next following, to the great terror and disturbance of the persons thereabout inhabiting, residing and being, and passing and repassing upon the public highway there, and to the terror of the people of the said State,” etc. The sixth count charged that “Harry Cohen, on the said day in the said year, at the City of Baltimore aforesaid, together with divers persons to the jurors aforesaid unknown, unlawfully, riotously and tumultuously, did assemble and gather together to disturb the peace of the said City and State; and then and there being so assembled and gathered together, then and there riotously did assault, intimidate and interfere with divers persons to the Jurors aforesaid unknown, and did destroy certain vehicles, to wit, certain taxicabs, then and there being the property of certain persons to the Jurors aforesaid (unknown), to the great disturbance and terror of the people,” etc. The defendant contends that these counts omit many of the definitions of riot at common law, and essential to an indictment. We agree with all of the definitions, but disagree with the defendants’ conclusions as to their effect on this indictment. At common law it was necessary that three or more persons be unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others, and assault or destruction of property may or may not be incident to the execution of the riot. The assembly must be unlawful, else there is no riot, and the unlawful assembly must be charged in the indictment.

Hochheimer, Crim. Law, secs. 429-431. In Kaefer v. State, 143 Md. 151 , 122 A. 30, 31 , thirteen named persons were indicted for unlawful assembly and riot, “with divers other evil-disposed persons to the num ²²² ber of fifty or more.” The defendants there demurred, and the demurrer was overruled, and on appeal affirmed. The only substantial, not material, difference between that indictment and this one, is that in the Kaefer case thirteen were named as rioters, while in this case there is one.

One person can be charged with rioting, provided he is alleged to have been so engaged with at least two other persons. If known to the grand jury, they should be indicted; if unknown, it is essential that the indictment so state. If three are indicted by name, and there is no charge that divers others were associated with thém, then a conviction of two would be invalid. In Commonwealth v. Berry, 5 Gray (71 Mass.) 93, Berry, Salisbury, and Foster, “together with divers other evil disposed persons * * * committed a riot.” They were tried separately.

In Berry’s case the trial judge charged the jury “* * * if the defendant joined in the riot with the two persons named, or any other two persons, though unknown to the grand jury, it would be sufficient.” On appeal the Supreme Judicial Court said: “It is undoubtedly true that a riot cannot ordinarily be committed by one person. It is the acting in concert, the unlawful combination, which constitutes the offense. The direction was strictly correct. Whether the other rioters were named in the indictment, or riot, proof of a riot in which any two other persons joined with the defendant was sufficient.” Martin v. State, 115 Ga. 255 , 41 S. E. 576 .

In the case of The King v. Sudbury, Heaps and others, 12 Mod. 262, Case 473, 1 Lord Raymond, 484, “Defendánts were indicted for that they riotose et routose as semblar erunt, and so assembled committed a battery on Mary Russell. Two of them were found guilty and all others were acquitted; and judgment was arrested for two cannot commit a riot.” It was there said by Lord Holt, C. J., “If the indictment had been, that the defendants with divers other disturbers of the peace, had committed this riot and battery, and the verdict had been, as in this case, the King might have had judgment.” See 3 Bishop’s New Crim. Proc., sec. 998 (2); 3 Salk, 317, 90 Eng. Rep. ²²³ 1251; 91 Eng.

Rep. 846; 54' C. J. 835, sec. 19. We find no objection to the second, fourth, fifth and sixth counts of the indictment, the questions raised by the defendant being, in our opinion, on matters which can only arise on exceptions to evidence, which will be later herein discussed. There were sixty-nine exceptions reserved by the defendant in the course of the trial, of which sixteen were abandoned on appeal. The first nine arose on the examination of the petit jurors to ascertain their qualifications, all others on objections to evidehce, except the last three, which were on motions for a mistrial, and, in addition to the questions raised by the bill of exceptions, the defendant, in this court, attacks the sentence, which is a fine of $5,000 and three months in the Maryland Penitentiary, as unconstitutional.

Exceptions 1 to 9, inclusive, were all to the refusal of the court to allow defendant’s counsel to interrogate the petit jurors, who were questioned by the court, to the end that a list of twenty qualified jurors might be furnished from which each side had the right to strike four. Code, art. 51, secs. 13 and 17. No exceptions had been taken to any questions put to the jurors by the court, all of which were designed to ascertain whether they were free from bias or prejudice, and all of which went to their qualifications to sit in the case. The defendant’s counsel during this examination asked some additional questions, which the court refused to allow him to do, and to which rulings exceptions were taken.

After the first two j urors had been examined by the court, the court suggested to defendant’s counsel that he make up a list of questions going to the qualifications of the jurors, and from them he would ask such questions as he thought touched their qualifications. Only three of the questions submitted went to the qualifications, and these, in substance at least, had been asked the first two jurors, and it was agreed in the record that substantially the same questions had been propounded to each prospective juror. The impression we get from these nine exceptions is that the defen ²²⁴ dant is not aggrieved, certainly not injured, by the refusal to have any specific questions asked, but for the refusal of the court to allow him to take over the examination of jurors. “It is only when permitted by the court, in the exercise of its discretion, that counsel may examine such jurors.” Beck v. State, 151 Md. 615, 620 , 135 A. 410, 412 . “The purpose of the examination is to ascertain, as nearly as may be'learned from a juror’s answers, whether he is so free of bias or prejudice as to give the one to be tried a fair trial, and it is the duty of the court to furnish him such jurors.” Lee v. State, 164 Md. 550, 557 , 165 A. 614, 617 . The examination which the party is thus entitled to have made is only a means to the end of ascertaining the existence of cause for disqualification, and is not permitted “for any other purpose.” State v. Welsh, 160 Md. 542 , 154 A. 51 ; Whittemore v. State, 151 Md. 309 , 134 A. 322 ; Lockhart v. State, 145 Md. 602, 613 , 125 A. 829 .

In the examination of the list of jurors we find no error. The indictment in this case arose out of a strike which had been voted on December 4th, 1936, by the Chauffeurs and Teamsters Union of Baltimore, an affiliate of the American Federation of Labor, against the Diamond Cab Company, operated and managed by the Association of Independent Taxi Operators, Inc., being an association of 126 owners of 329 taxicabs, of whom about 40 drive themselves, and against the Yellow Cab Company. The facts in the record are so scrambled and disconnected that it is difficult to write a connected story of the strike, but it seems to have become effective against the Diamond Cab' on December 12th, 1936, when the first riot or series of riots occurred. On December 16th the outbreaks became more serious, and on the 20th a conference of all elements involved was called by the Governor, as a result of which a truce was agreed to from that day to the 2nd day of January, 1937.

Peace, however, lasted only until December 29th, when there was another outbreak. It does not appear just when the strike got under way against the Yellow Cab Company, but Albert ²²⁵ E. Heath, a witness called by the defendant, testified that he had been convicted for throwing bricks on February 8th, and that “* * * there had not been any Yellow Cabs rolling from the 31st of December until the morning of the 8th of January. That there were about 150 Yellow Cab men picketing the place, and about seventeen Yellow Cabs rolled out. That when they came out they were assaulted with missiles, such as rocks, stones, beer bottles, milk bottles, whiskey bottles, umbrellas.

That he hit tlie first one but did not have anything to do with the rest of the cars.” The record does not show any more outbreaks between January 8th and February 1st. Ón February 11th the defendant made the last speech appearing in the record at a meeting held on Greenmount Avenue, which will be mentioned later. The defendant appears to have been in charge of the taxicab strike, in which the two companies were involved, and directed its activities. As a result of numerous disturbances, breaches of the peace, assaults, and destruction of property, he was indicted for inciting to riot and for rioting. The second count of the indictment charges the defendant with inciting to riot on the 12th day of December, 1936, the fourth, with inciting to riot on the 12th day of December, 1936 “* * * and thence continually until and including the 29th day of December,” 1936; the fifth and sixth counts charge him with riot on the 12th day of December, 1936.

The defendant’s main, and apparently the only serious, contention as to the admissibility of evidence is that no evidence of any acts are admissible subsequent to the timé alleged in the indictment, and this with particular reference to the testimony of a newspaper reporter, covered by exceptions 39 to 44, inclusive, regarding the meeting of February 11th, 1937, when the defendant is reported, amongst other things, to have said: “The war is on and we are going to take the battle into our own hands.” He prophesied that “* * * ‘Some of you are going to get into trouble, but we will get you out’ and there was a mighty shout through the old brick structure.” He cites and ²²⁶ quotes many authorities, five from this court, in support of this contention. . In one of them, Dobbs v. State, 148 Md. 34 , 129 A. 275 , it was held that, on a prosecution for murder while committing a robbery, evidence of another robbery by the traversers was inadmissible; Young v. State, 152 Md. 89 , 136 A. 46 , was a case of embezzlement; Avery v. State, 121 Md. 229 , 88 A. 148 , was a case of abortion; in Weinstein v. State, 146 Md. 80 , 125 A. 889 , the charge was perjury; and in Meno v. State, 117 Md. 435 , 83 A. 759 , the charge was abortion. There is a class of cases in which evidence of other like offenses may be received from which intent or guilty knowledge may be inferred, but it is not necessary to cite them here. The cases cited by the defendant have no application to this case.

This case is a misdemeanor of a kind in which time is not of the essence of the offense-. In such cases the day named in the indictment need not be proved, but it must be a day prior to the indictment within the period of limitations, Capritz v. State, 1 Md. 569, 574 ; World v. State, 50 Md. 49, 55 ; State v. Kiefer, 90 Md. 165, 176 , 44 A. 1043 ; Archer v. State, 145 Md. 128, 138 , 125 A. 744 ; Ledbetter v. United States, 170 U. S. 606, 612 , 18 S. Ct. 774 , 42 L. Ed. 1162, 1164 ; nor in a case of the character before us is the State bound to the events of a single day. In 1 Chitty Grim. Law, 224, it is said: “Where an offense is committed by the doing of several acts at separate times, they may have been stated to have been done at the same time.” In indictments “* * * for high treason, overt acts committed at different times may be laid on one day.” In the case of Rex v. Gordon, 21 Howell’s State Trials, 11 Eng.

Eul. Cas. 282, the defendant, Lord Charles Gordon, was indicted for treason, and evidence of inciting riots from June 2nd to June 10th, 1780, was all received as evidence of an offense. In that case, Lord Mansfield, C. J., with Willes, Ashhurst and Buffer, JJ., sat. In Wharton’s Crim.

Evidence (10th Ed.), 501, 502, it is said: “In case of feuds and riots and strikes or disturbances, where parties are arrayed against each other for weeks, and people are so ²²⁷ absorbed in the collision so as to be conscious of little else, then all such parties say and do under such circumstances is as much a part of the res gestae as the blows given in the homicides, for which particular prosecutions may be brought,” and further says (section 263, page 502) : “* * * Declarations claimed to be part of the res gestae may precede, accompany or follow the transaction to which they relate”; and cites State v. Ridgely, 2 H. & McH. 120 , and Lord Gordon’s case, supra. All of which means that the evidence of riots and disorders prior to the date of the indictment are centered in the judgment in this case, and are concluded by it. The defendant in this case seems to be of the same opinion, for- in 173 Md. 235 , 195 A. 540 , at the present term of this court, on an indictment for a riot on the 12th day of February, 1937, he has filed a plea of former conviction of the offense there charged. Many of the exceptions were taken to evidence of disturbances at which the defendant was not present as an active participant, or were not shown to be directly incited by him.

There was no effort to conceal the fact that he was directing the strike, present at all conferences, making speeches before and after every outbreak and disturbance, and this continued