People v. . Most , 128 N.Y. 108 ( 1891 )

Andrews, J.

But three of the questions presented on the brief of the appellant’s counsel can be considered on this appeal. One of these questions is raised by the exception to the denial by the trial judge of the motion of the counsel for the defendant, made at the conclusion of the evidence on the part of the people, for an instruction to the jury to acquit the defendant on the ground that the evidence was legally insufficient to justify a conviction. An exception was taken to a question put to a witness for the defendant on cross-examination by the prosecuting officer, and which was allowed by the court, as to his belief in a Supreme Being. A third exception was taken to evidence offered by the prosecution and admitted, that the persons present at the meeting at Kraemer’s Hall on the evening of November 12, 1887, were anarchists. By the decision of the general term, affirming the conviction and judgment of the trial-court, questions as to the credibility of witnesses and the weight and preponderance of evidence are eliminated from the controversy, as well as every consideration bearing upon the propriety of granting a new trial, in the exercise of judicial discretion, upon the ground that the jury were prejudiced by offers of evidence persistently made by the prosecuting officer, and repeatedly overruled, which offers, as is claimed, were persisted in in order to bring before the jury irrelevant facts having no legitimate bearing upon the issue to be decided. If, in the opinion of the general term, for any reason appearing in the record, justice required a new trial, it had the power-in its discretion to grant it. But this court, as a general rule, deals with questions of law only, and it cannot review an exercise of the discretion of the general term in granting or refusing new trials in criminal cases. The main question relates to the sufficiency of the evidence to support the charge in the indictment. In order to ascertain in what the offence of an unlawful assembly consists, reference must be had primarily to the statute which defines it. It was an offence well known at common law, and common-law definitions may be a material aid in many cases in the interpretation of statute definitions of common-law offences. But as it is competent-for the law-making power to create new offences not before known, so it may extend common-law definitions of particular offences so as to include acts, not punishable-under the common law, and not embraced within the common-law definition of the offence. In other words, identity in the name of offences at common law and under a statute does not necessarily imply that the same precise constituents, and no others, enter into both. The third subdivision of section 451 of the Penal Code, under which the defendant was indicted, requires that, in order to constitute the offence of unlawful assembly, three or more persons being assembled, should attempt or threaten any act “tending towards a breach of the peace or any injury to person or property, or any unlawful act.” The offence can only be committed when there is a concert or combination of three or more persons who unite in the attempt or in the threat to do one or more of the things specified in the statute. A threat made by one or by two persons only, in which no others participated, would not be indictable under this statute, although made in an assembly of many persons. It was also the rule of the common law that three or more persons should be assembled and participate in the unlawful purpose in order to constitute the offence of unlawful assembly or the cognate offences of rout and riot (4 Bl. Comm. 146 ; 1 Russ Crimes, 288). Unless, therefore, the jury were authorized to find that the threat charged in the indictment was made not only by the defendant Most, but also by at least two other persons, on the occasion in question, the offence was not made out. In determining whether others participated with Most in the threat alleged, it was not necessary that it should affirmatively appear that other persons present uttered or repeated the same words used by Most. Their participation could be shown by their adoption of his language, exhibited by their conduct. If the jury were authorized to find that the persons present were under the influence of similar sentiments, and that they (to the number of two or more) adopted his language as their own, then the threats, though only uttered by him in words, were also those of the persons who by their conduct approved of and assented to them. “If any person,” said Mansfield, C.J., in Clifford v. Brandon (2 Camp. 370), “encourages, promotes, or takes part in riots, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter.” Within this principle the requisite concurrence of the statutory number in the threats uttered by Most was shown or at least there was sufficient evidence of that fact to go to the jury. The assembly had met under the excitement of the hanging of the Chicago anarchists the day before. It was in sympathy with Most, and when he entered the room the persons present hailed him as their leader. They applauded his utterances and cheered him when he denounced the murderers of their- “ friends and comrades” and threatened revenge. But it is insisted that no threats were proved to have been made by Most; that what he said were prophecies of what would be likely to happen, and not threats that he or others in sympathy with him would commit violence or murder to vindicate their “ murdered brethren.” It is unnecessary to recall the specific evidence upon this point. The language of Most would under ordinary circumstances be regarded as the ravings of a madman, rather than the deliberate utterances of one who had formed the purpose of avenging supposed wrongs by murder and revolution. It was for the jury, however, to interprete the language used. The denunciations of the government and the officers of the law, with which Most’s speech abounded ; his advice to arm and to be prepared for the revolution “ not far distant ” ; his declaration that they would avenge the blood of their comrades; his references to the judges and the officials who were concerned in their trial, conviction and execution, and the declaration that Governor Ogles-by, although he had commuted the sentences of two of the condemned, would not be “ spared ” in the general destruction ; his reference to the “ police bloodhounds,” and his exclamation “ God help them if they are found in our socials ! ”—presented evidence, from which the jury had a right to say whether or not the words, some of which were unmistakably in the form of threats, were in fact used and understood as such, and their finding upon this point adversely to the defendant is conclusive here. Nor is it, we conceive, an answer to the indictment that the threats related to acts not presently to be done, but to be performed at some future time, when affairs were ripe for the revolution predicted. The main purpose of the common law and of the statute relating to unlawful assemblies is the protection of the public peace. Incendiary speeches under the circumstances disclosed in this case, before a crowd of ignorant, misguided men, are not less dangerous because the advice to arm for the redress of grievances and the threats of murder are accompanied with the suggestion that the time is not quite come for action. This is illustrated in this case by the circumstance appearing in evidence that when Most said, “ The day of revolution is not far distant,” one of the audience rose and said excitedly, “ Why not to-night? We are ready and prepared.” No one can foresee the consequences which may result from language such as was used on this occasion, when addressed to a sympathizing and highly excited audience. The point that threats of personal violence made in this state against persons in another state, although made at an assembly here, are not within the statute, is untenable. The offence of unlawful assembly, of which the defendant was convicted, was committed here. We are administering our own laws and not the laws of a foreign jurisdiction, and our state may properly pass laws to punish plotters here against the public peace of a sister state. We are of opinion on the main question that a case within the statute was made out for the jury. The common-law offence of unlawful assembly is defined to be “ a disturbance of the peace by persons assembling together with o an intention to do a thing which, if executed, would make them rioters, but neither executing it nor making a motion towards its execution ” (1 Russ. Crimes, 275). It is unnecessary to decide whether the circumstances of the present case constitute the offence within this definition. They bring the case within the statute definition, and that is sufficient. The exception to the question put to the witness on cross-examination as to his belief in a supreme being is frivolous. The exception to the proof that the persons assembled at the meeting of November 12 were anarchists is also without force. That they were, in the main, anarchists appears by other testimony. They were addressed by Most as “ brother anarchists,” and they saluted him as their leader. Moreover, proof that they were anarchists was' competent to aid the jury in determining, in connection with other circumstances, this point: whether the meeting joined in the threats made by the defendant. We discover no error in the record, and the judgment should therefore be affirmed. All concur, except Finch, J., absent.

Note.—As to the offence of unlawful assembly under the law of England, see 2 Stephens' Hist. of Crim. Law of England, 385 ; Stephens' Digest of Crim. Law, Art. 70, and cases cited.