[Leg. Int., Vol. 32, p. 275.]
Commonwealth vs. Armstrong and Guescetti.
The arming of men to the number of three or more with guns, maintaining them in organized force, carrying and discharging their arms in a peaceful neighborhood, to the terror of the citizens, is riot. Armed patrols posted in companies of three or more, discharging their arms, and taking into custody citizens in a peaceful neighborhood, to the alarm and terror of the peaceful people thereabout resident, constitutes a riot. But a man may defend, by all reasonable means, his person and property, and to this end may arm himself and members of his family, and patrol his immediate premises to meet and anticipate an apprehended attack, not forgetting the rights of his peaceful neighbors. When the property endangered embraces a large field of operations, as a colliery, the posting of an armed patrol may be a necessary precaution.
Charge delivered May 26, 1875, by
Logan, P.J.--Gentlemen of the Jury:--There are certain matters of fact in this case that may be taken as conceded. These are, that after a strike upon the part of the laborers mining coal at the works of C.H. Armstrong, one of the defendants in this case, he procured the services of a large number of Italian miners, and on the 26th of last October brought them to his mines to take the places of those who had stopped work. These men were under the leadership and control of Frederick Guescetti, the other defendant upon trial. Mr. Armstrong, apprehending danger to his men thus brought, and his works to which they were brought--whether upon sufficient evidence or not is a question for you--caused the men to be provided with arms and ammunition, and patrols and guards were put out in the neighborhood of the coal works armed with loaded guns. It does not seem either, to be a matter of dispute, that a considerable amount of firing was done, as well by these men as by their unknown antagonists, and that at least three of the Italians lost their lives, and a considerable number of the same nationality were wounded at the consummation on the 27th November, after the crowd crossed the river and took their position upon the hill back of the coal works.
The question for you, then is, whether these acts amount, on the part of the defendants, to the charge stated in the indictment--either an aggravated riot, or a simple riot--because it is in your power, under tho present indictment, to find a verdict of guilty of riot or aggravated riot. If there was a riot, or acts amounting to this at the time, then the next question is, whether one or both of these defendants are criminally responsible for the acts thus done.
Looking at the last of these propositions first, it may be said, that in order that criminal liability might attach
to either of these defendants, it is not essential that he be personally present immediately at the doing of the act. It would be sufficient if you find such person instigating, promoting, and advising the doing of the particular act or acts of a criminal character; or advising ,assisting, or abetting in their being done. We will, however, further remark upon this question, after discussing the other phase of the case.
Was there then a riot? Here we may state, that presumably the arming of men to the number of three or more, with and maintaining them in organized force, guns, carrying and discharging their arms in n peaceful neighborhood, to the terror of the citizens, is a riot; that armed patrols, posted in companies of three or more, discharging their arms, and taking into custody citizens in n peaceful neighborhood, to the alarm and terror of the peaceful people thereabout resident, constitutes a riot. Such facts, we say, in the absence of qualifying circumstances, would justify you in finding an existing riot. But whilst such are the presumptions, it does not necessarily result that such presumption is conclusive--that in every such case of arming to the number of three or more, or of sustaining armed patrolmen to a like number, riot has been consummated, although accompanied with acts creating terror. To so hold in all cases would, as we conceive, ignore the doctrine of self-defence--a doctrine dependent upon natural principles, and as controlled by law essential to the highest interest of the citizen. It is a well-recognized and vital rule, that a man may defend, in all reasonable ways and by all reasonable means, his person and property, and to this end may arm himself and members of his family, and patrol his immediate premises to meet and anticipate an apprehended attack, not forgetting the rights of his peaceful neighbors. It is true he is not warranted in taking human life in such cause, save to avert an immediate attack, and when necessary to prevent a felony from being committed on his property with violence, or to protect himself from loss of life or serious bodily harm when there is no other possible, or at least probable, means of escape; nor in any case to repel an attack with disproportionate ways and means to the disturbance of the peace or injuring of person. But within these limits, which the law with wise precaution has prescribed, this right--the right of self-defence is absolute.
As therefore a man may defend his person and his property, it result's that he may adopt such prudent means, as the number of men menaced, or extent of the property endangered may demand. If it be one man alone, and his immediate home or castle that is involved, and the expected assailant a single person, or but few, he would not be warranted in placing a large guard of armed men at remote points for defence, to the disturbance and annoyance of the people. When, however, the property endangered embraces a considerable extent, and distinct and several parts of a whole, necessarily covering a large field of operations as a colliery, and the persons threatened include a number of persons pursuing at the same works a common calling, in such case the posting of an armed patrol, although over a comparatively wide extent of territory and in numbers may be a necessary precaution against attack, and when prudently conducted will be justifiable, because necessary. The circumstances, however, that would warrant the posting of patrolmen under arms, and quasi military discipline, and the discharge of their arms, to the alarm of those surrounding,
must evidence a distinct and threatening danger that could only thus be reasonably averted or guarded against.
But when exigencies present themselves making it vital to the conduct of a peaceful and a useful business, and to the security of the lives of those honestly engaged in such pursuit, that arms should be in their hands, the constitutional right of the citizen to bear arms in defence of himself, is an abundant justification for their employment. Such use is of course subject to abuse, and when so abused the act becomes an offence.
This right seems not only to result, as we have seen, from the law of self-defence in its general sense, but in a large degree to be a necessary exercise of power to guard large manufacturing and mining operations and properties, from threatened and much too often consummated assault on persons and destruction of property. It is not so well settled as is generally supposed, how much greater the power of the peace officer than the owner of the property is, in the presence of anticipated--apprehended-- felt but intangible danger, when the threat is read in the air of the surroundings; the bearing of the feared assailant; the slight, yet wicked, but successively concealed act of aggression, when the only voice is the rude caricature of the coffin and cross bones and the anonymous threat; but when no actual breach of the peace exists, and no offender can be found against whom a tangible charge may be made with a fair hope of its being sustained.
When there is an existing offence, an actual occurring breach of peace, or an offender found, the duty and power of the peace officer as well as citizens is both ample and evident, but in the absence of this, neither duty nor power of the officer in so far as it exceeds that of the person personally interested, is so manifest.
Yet we have had occasion to recognize the necessity and right springing therefrom of the sheriff, in the presence of clandestine acts and insinuated threats of violence, to place himself by deputies in guard of person and property, and have seen the insufficiency of such precaution attended with disastrous results, and we consequently do not feel warranted in denying this right to the citizen, as in view of the law, could not be done. We would, however, earnestly urge the greater prudence of securing the aid of the peace
officer when it can be obtained, even when no outbreak specially invites such intervention.
In this view then, were there surrounding circumstances reasonably creating such apprehension as warranted the raising and placing
of these men upon guard by the defendants, Armstrong aud Guiscetii, and each guard not unduly out of proportion to the existing necessities. If so, then this act, although to the terror of those there about, and caused by the united act of three or more, would not of itself he riotous; and the next question presenting is, whether afterwards, with the knowledge, concurrence and counsel of the defendants, or either of them, these men, to the number of three or more, carried their conduct beyond what was necessary to their immediate defence, or the defence of their property, to the alarm of the citizens. We shall make no comment on the facts but content ourselves with a statement of the legal principles controlling.
Whilst they may have had the right to arm this body of men and to put out patrolmen, it does not result that they would have the right to authorize or permit them knowingly to thereafter conduct themselves in reckless disregard of the rights of others, and to the terror of the people, by the frequent discharge of arms at inhabited places, when not reasonably necessary to their immediate defence. Nor would they, in warding off attack, be justified in firing into the houses of citizens to their terror, not parties to the attack, and endangering their lives, unless it was the casual and accidental or necessary result of the defence of an immediate and pressing assault.
If such acts, terrifying in themselves, and their consequences, were done from mere recklessness, or in a spirit of wild revenge, for acts of assault or supposed assault, it would not be excusable.
The right of self-defence does not give loose rein to indiscriminate firing at and in the direction of inhabited houses, at actual or supposed assailants, when no urgent danger threatens, and when so done to the number of three or more. If you find beyond a reasonable doubt it to have been so done, to the terror of the peaceful citizens, it was a riot, and if the defendants or either of them were parties to such acts, they are offenders.
If however, the conduct of these men, so far as within the knowledge, procurance or control of the defendants, was confined to what was reasonably necessary to the present defence of person or property, then, although incidental alarm may have existed on the part of innocent persons, yet the act would not be criminal as to these defendants. The fact that defence of life or property under proper justifying circumstances may create alarm and consternation and danger to those in the neighborhood, does not of itself make the act criminal. It is only when such defence is pursued beyond what is necessary to avert the attack, or when the aversion is attempted by ways and means unnecessary under the circumstances in themselves, and dangerous to the lives or disturbing to the peace of those thereabout, that criminal liability attaches.
Recurring then to the question first discussed, the facts necessary to connect these defendants with the acts of offending, if offence there was. Remember, in the first place, it requires the concurring acts of three or more persons to constitute a riot; not less than three, but any larger number. If you find the act of riot to have been consummated, it becomes necessary that you inquire whether the defendants upon trial, or either of them, were parties to the act. It does not necessarily follow, because there may have been in fact riotous conduct upon the part of some of the men upon guard, that the employer or controllers of the men were guilty. This would only result when you find such employer or controller, or either of them, were parties to, or the procurers, the aiders or abettors in the particular act of riot so found, if found to have been done; if such connection with either party be found beyond a reasonable doubt, then a verdict of guilty against such party should be found.
If there was no act of riot, then the verdict should be, "not guilty." If there was an act, or were acts of riot, and either of these defendants, not parties or aiders or abettors therein, then as to such defendant, the verdict should be "not guilty." If neither defendant was so connected with the act, then a verdict of not guilty should be rendered as to both.
The Commonwealth claims that there were acts of riot, and that these defendants were parties to such acts. The defence denies that there were any acts of riot, or if such were done by the men armed for a necessary purpose, that these defendants were not present and did not have knowledge of the acts so done. The question is for you--we need not go in detail over the testimony; it has been most fully argued by counsel.
Frank Cowan and J.J. Hazlett, Esqs., for the Commonwealth.
Harrison P. Laird, John Latta, and Edgar Cowan, Esqs., for the defendants.
[THE PHILADELPHIA REPORTS. CONTAINING DECISIONS PUBLISHED IN THE LEGAL INTELLIGENCER, DURING 1875 AND 1876. COMPILED BY HENRY C. BROWN, Esq. VOL. XI. PHILADELPHIA: J.M. POWER WALLACE, 132 SOUTH SIXTH ST. 1881.]