State v. Mizis

¶1delivered the opinion.

¶21. The first point relied upon for reversal is that the court erred in overruling the motion for a change of venue. Where an action for a felony is at issue upon a question of fact, the place of trial may be changed, when it appears by affidavit to the satisfaction of the court that a fair and impartial trial cannot be had in the county where the action is brought: B. & C. Comp. § 1250. But an application for that purpose is addressed to the discretion of the trial court, and its action in granting or refusing the same will not be disturbed on appeal, unless there is manifestly an erroneous exercise of such discretion to the substantial injury of the accused: State v. Pomeroy, 30 Or. 16 (46 Pac. 797); State v. Savage, 36 Or. 191 (60 Pac. 610, 61 Pac. 1128); State v. Humphreys, 43 Or. 44 (70 Pac. 824); State v. Armstrong, 43 Or. 207 (73 Pac. 1022).

¶3Upon the showing made in the case there was, in our opinion, no abuse of discretion. The affidavits in support of the motion were all made by non-residents who had been in the county but a few days, and, in the nature of things, could not have been familiar with the general public sentiment. On the contrary, the affidavits filed by the prosecution were by officers, citizens and residents of the county, who all state that they were familiar with the public feeling, and that in their opinion a fair and impartial trial could be had in the county. This view was subsequently confirmed by the fact that no particular difficulty seems to have been experienced in securing a jury. It is true the newspaper articles made a part of the record were inaccurate in many particulars and somewhat sensational, but they were not particularly inflammatory or calculated to so prejudice the citizens of the county against the defendants as to prevent a fair and impartial trial.

¶42. The next contention is that the court erred in overruling the motion for a continuance. The grounds of the motion were the alleged excited state of the community and the want of *175sufficient time for counsel for the defense to prepare for trial. The postponement of a trial, like that of a change of venue, rests in the discretion of the trial court, and its ruling will only be reviewed for abuse: State v. O’Neil, 13 Or. 183 (9 Pac. 284); State v. Hawkins, 18 Or. 476 (23 Pac. 476); State v. Howe, 27 Or. 138 (44 Pac. 672); State v. Fiester, 32 Or. 254 (50 Pac. 561). A defendant in a criminal action is entitled as a matter of right to the aid of counsel and to a suitable time after he is informed of the nature of the accusation against him to prepare for trial, and, if the application in this case had been for a postponement for a reasonable time for such purpose, quite a different question would have been presented to the trial court. But the application was to postpone the trial for the term, which would have taken it over until the following January, and there was not sufficient reason shown for such a delay. If counsel desired more time in which to prepare for trial, they should have so advised the court and asked for a postponement for that purpose, and it would probably have been granted. Having confined their application to a request for a continuance for the term, there was no reversible error in denying it.

¶53. At the close of the State’s case, defendants moved the court to direct an acquittal, for the reason that there was no proof of the commission of the crime of riot, or that either of the defendants participated therein. Whatever the definition of a “riot” may be at common law or in other jurisdictions, it is thus settled here by statute:

“Any use of force or violence, or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law:” B. & C. Comp. § 1913. .

¶6To constitute a crime under this statute, there must be: First, the use of force or violence or threats to use force or violence, accompanied by immediate power of execution; second, such force or violence or threats must be by three or more persons acting together; and, third, they must be acting without authority of law. It is, of course, not necessary that the three persons should do the same act in the sense that what one does must be identical with what is done by each of the others to *176constitute an “acting together,” within the meaning of the statute. It is enough if they have a common purpose to do the act complained of or are engaged in aiding and assisting one another to accomplish such common purpose, although the individual act of each may be separate from that of the other. Otherwise riot is an impossibility. For, as said by Mr. Justice Stephens, in Prince v. State, 30 6a. 27: “It is impossible that the action of each shall not have a certain individuality which will distinguish it from the action of all the rest. In tearing down a house, for instance, one rioter breaks down a door, and another breaks down a window, and a third merely hands a crowbar to one of his associates. Here each one’s act is different from the acts of the others, and the act of one of them has in it nothing of violence. But there is an obvious legal sense in which they all do the same act. The common intent, which covers all the individual parts in the action, cements those parts into one whole,- of which each actor’ is a responsible proprietor. The part performed by himself is his by perpetration, and the parts performed by the others, in execution of the common intent, are his by adoption. The principle is that each one adopts the performances of all the rest and adds them to his own, and thus does the whole, in the sense of the definition, so long as they are acting in execution of the common intent, but no longer.”

¶74. Nor is it necessary that there should be direct and positive proof of a common purpose, or that the parties should deliberate beforehand or exchange views before entering upon the execution .of their design. The purpose and intent may be inferred and found by the jury from the circumstances and the acts committed by them: United States v. McFarland, 1 Cranch, C. C. 140 (Fed. Cas. No. 15,674); United States v. Peaco, 4 Cranch, C. C. 601 (Fed. Cas. No. 16,018); Astor Place Riot Case, 11 Daly, 1.

¶85. Now, let us apply these principles to the testimony and see whether there was any evidence of a riot and of the defendants’ participation therein. Mr. Petersein, the foreman of the gang to which the defendants belonged, testified that, about the *177time of the difficulty, he was returning from a nearby house, accompanied by his wife and Assistant Foreman Claudfelder, and as he approached the railroad track he saw a brakeman having some difficulty with his men;.that he went to his car, got his rifle and fired several shots into the air and ordered the men to return to their cars, but they did not do so and continued down the track toward the engine; that he immediately heard perhaps 25 or 30 shots fired near or about the engine of the freight train, and from 75 to 100 shots in all, and there was quite a difference in the volume of the sound; that on his way to his ear he saw the defendant Mizis armed with a gun in a crowd going in the direction of the engine; that Mizis said they had broken his stove and he was going “to kill the son of a bitch”; that he could not say whether all his men were out of the cars or not, but that most of them were. Claudfelder said that, as he and Petersein came onto the right of way, he looked down the track toward the freight train and saw quite a body of men moving in that direction; that he started to his own car, and, as he did so, passed a number of men going north and recognized Mizis, who was armed with a pistol and said they “liad broken his stove and he was going to kill” them; that he saw a number of guns and pistols flash in the moonlight, and just had time to get to his car, when he heard a. great number of shots fired in the vicinity of the engine of the freight train, and there was a difference in the volume of the reports; that he was acquainted with Georges and Demas, as they both belonged to Petersein’s gang, but he did not see either of them that night.

¶9McCulloch, the fireman of the freight train, testified that, at the time the train pulled in on the siding and stopped, the defendant Georges and 10 or 15 other men came up to the gangway of the engine, and Georges said to the engineer, “Come down, you son of a bitch, if you want to fight,” and that he would kill him; that several shots were fired at the engine before witness left it, three passing through the witness’ window and one through that of the engineer and the glass was broken out of the front of the cab; that witness examined the engine *178the next day and found marks of bullets and shot, which indicated that the firing had. been done from the front. Woodson, the engineer, testified that, about the time or soon after his train came to a stop on the siding, somebody commenced shooting- at the engine; that the firing first came from the right side of the cab through the front door and then from the left side; that a number of Greeks, none of whom he recognized, came to the engine, and one of them put his hand on the side of the tank and said to witness, “Damn son of a-bitch, I kill you,” and invited him to get down from the engine and was mumbling something about upsetting a stove or something of that kind; that, after several shots had been fired at the engine, witness jumped down and started to run toward the caboose, and some one commenced shooting at him and kept it up until he fell into a ditch which crosses the track; that at least eight or nine shots were 'fired at him from the time he left the engine until he reached the ditch, and that more than 100 shots were fired in all that night; that he examined the engine the next morning and found the shots came through the doors in front, and he also found the impress of a large bullet on the main reservoir under the fireman’s seat and grains of shot in the cab and tank box.

¶10Johnson was a brakeman on the freight train, and testified that after the train pulled in on the siding he heard shots up front, and, supposing the head brakeman was having some trouble with “hoboes,” started in that direction and met the defendants Georges and Demás in company with several other persons; that Georges grabbed him by the arm and inquired if he was the conductor, and, being answered in the negátive, asked where the conductor was, and was told that he was in the caboose; that Georges said, “I kill the conductor,” and, “I kill you, you son of a bitch,” and slammed him up against a ear; that witness broke away from Georges and started to run toward the caboose, and when he got about two car lengths from it some one commenced firing at him, and he dodged between the cars and over to the other side of the train and ran to the caboose and told the conductor that if they found him they *179would kill him; that the conductor went out the front door of the caboose, and witness out the rear and ran for the track-walker’s shanty; that shots were fired at him all the time he was going there; that at the time Georges told the witness that he would kill the conductor, Demás was standing at his side mumbling something which the witness did not understand: and that Georges and Demás seemed to be the leaders of the crowd, but witness could not say whether either of them was armed or not. Gallings, the conductor of the freight train, testified that, after he was advised by Johnson to leave the caboose, he started to run toward the trackwalker’s shanty, and on the way he met Georges, who wanted to know if he was the conductor, and, being answered in the negative, said he would “kill the son of a bitch,” and started on toward the caboose; that Georges was armed with a gun of some kind at the time, and although witness did not see any other persons he heard others talking nearby.

¶11There was much additional testimony as to the general character of the difficulty, the number of shots fired, and the like, but this is sufficient to show that there was abundant evidence tending to prove the use of force and violence by three or more persons acting together and without authority of law, and hence the crime of riot; and that the defendants Georges, Demás and Mizis were either actively engaged in such riot or present aiding and assisting others to commit the crime.

¶12A claim is made that the proof does not show that there was any community of action between the defendants, or that either of them did the shooting at the fireman and engineer as charged in the indictment, or assisted, aided or encouraged the same. But there was sufficient proof on both of these points to take the case to the jury. Mizis, in company with a crowd of his fellow countrymen, was seen approaching the engine armed with a gun and was using threatening language toward the trainmen just before the firing began. Georges was at the engine about that time threatening the life of the engineer, and Demás was shown to have been in the crowd a few minutes later actively participating in the difficulty. So the jury were justified in finding *180that they were acting together and with a common purpose, and that they either did the firing at the engineer and firemen, or induced or encouraged others to do it. “Hiot” is a compound offense, to constitute which there must be a joint action of three or more persons. But all who aid, encourage or promote it by words, signs or other acts are principals and jointly guilty of the .offense. It is not necessary that a party should commit some personal violence or do some other physical act, but any act of assistance or encouragement is sufficient to malm him a principal. If he is busy while the riot is in progress in guiding, directing, inciting or encouraging others to commit acts of violence, he is as guilty as the instrumentalities he puts in motion-

¶136. The defendants testified as witnesses in their own behalf. And, for the purpose of impeaching them, the State called Petersein, Claudfelder and Wonacott, who each testified that the general reputations of the defendants for truth and veracity were bad. No objection was made to this testimony when offered or to any of the questions propounded to the witnesses, except the question asked Petersein if he knew the general reputation of Georges for truth and veracity, and the objection then made was that the question was incompetent, immaterial and irrelevant. After the testimony of each of these witnesses had been admitted, counsel moved to strike it out, on the ground that it was not proper impeaching testimony, and an assignment of error is based on the overruling of this motion. The objection now made to the testimony is that the witnesses were not shown to be competent to testify as to the general reputations of the defendants for truth and veracity in the community where they resided. But, as such an objection was not made when the testimony was offered, it cannot avail the defendants at this time.

¶147.A technical objection which goes to the form of a question or to the competency of a witness to testify as an expert, or on a question of character, should be specific so as to apprise the court and opposite party of the ground of the objection, that they may act accordingly.

¶158. And, as a general rule, it is not error for a trial court to *181refuse to strike out evidence, although immaterial or irrelevant, which has been admitted without objection at the time it is offered: 12 Cyc. 565.

¶169. It is also claimed that the court erred in instructing the jury that each of the defendants must have been “acting in conjunction with not less than two other persons in committing the act,” because the jury might naturally infer that any two persons would answer the requirement. The instruction quoted, however, must be considered in connection with that portion of the charge in which thé court told the jury specifically that, before they should convict either of the defendants, they must find beyond a reasonable doubt, “not only that such defendant participated in the alleged riot, but you must also find that at least two of the other persons whose names are stated in the indictment were present at the time the riot occurred, if one occurred,” and “were acting in concert with said defendant, and that they assembled with a common intent to do the act charged in said indictment.”

¶17There are objections to other parts of the charge, but they are mere verbal criticisms and do not affect the merits.

¶18Finding no error in the record, the judgment is affirmed.

¶19Affirmed.