¶1dissenting.
¶2I dissent from the holding of the majority that as a matter of law the evidence is insufficient to establish that Corbett did unlawfully “assemble without authority of law and for the purpose of disturbing the peace or exciting public alarm or disorder.”
¶3After midnight on April 7, 1968, crowds were roaming the streets of downtown Richmond and “had smashed many windows, were running wild, had overturned a vehicle and were just jumping up and down screaming and hollering.”
¶4The defendant was a part of a group of approximately 50 in front of a bank at Third and Broad Streets, where a window had been smashed and trash cans overturned. This group was noisy, shouting and screaming. The downtown area was described as very much out of control at that time. It was in this setting that the defendant, standing on an overturned trash can, said to the crowd, “We’ll be back again tomorrow night bigger and stronger”. True, after being arrested and prior to being lodged in the patrol wagon, he said, “But all I ask for is a peaceful demonstration”.
¶5The trier of the facts had the responsibility of weighing the evidence. He had a right to believe a portion of defendant’s state*308ment and reject the balance. The court evidently determined that defendant’s statement to the crowd was one of encouragement to return the next night in sufficient numbers to do greater damage and cause more disruption, and that his statement to the officers was a self-serving one made to alleviate the impact of his inflammatory remark to the crowd.
¶6Certainly the yelling, cursing, swirling group, of which defendant was a part and a spokesman,, which was engaged in overturning automobiles, breaking windows and interfering with traffic, was a group that had assembled without authority of law and manifestly had as its purpose disturbing the peace or exciting public alarm or disorder. The evidence shows that they succeeded.