Huss

Five members of the American Nazi Party, wearing party uniforms, steel helmets, and swastika armbands, picketed a meeting held to celebrate the fifteenth anniversary of the independence of Israel. Public disorder resulted, and all five were arrested, convicted, and sentenced on charges of conspiracy and assault. Three defendants have appealed.

The anniversary meeting was scheduled for 8:30 p.m. in the Shrine Auditorium. At 7:30 that evening defendant Holstein notified the police that he and four other members of the American Nazi Party intended to picket the meeting at 8 o’clock. When defendants arrived on the scene, the doors of the Shrine on Royal Avenue had not been opened, and a large crowd had gathered on the sidewalk outside the auditorium. The crowd extended along the sidewalk of Royal to Jefferson Boulevard, the street bounding the auditorium on the south. Two traffic officers were funneling pedestrians onto the corner of Royal and Jefferson, and two plainclothes officers assigned to interview the pickets were standing at the curb outside the entrances to the auditorium.

Defendants parked their automobile on Jefferson near Royal and walked to the corner in a loose line,…

Concurring and Dissenting.—I concur with the majority in an affirmance of the judgment as to Counts IV, V, VI and VII.

I dissent from the judgment reversing the conviction of defendants for conspiracy under Count I.

My colleagues reverse the judgment of conviction under Count I on a very narrow point.

Count I of the information did not charge conspiracy to breach the peace. It charged “Conspiracy to commit assault by means of force likely to produce great bodily injury, assault, battery, and riot . . .” It set forth 13 overt acts.

Nothing in Count I says anything about disturbing the peace per se.

The trial court in its instructions to the jury gave the code definition of riot as follows: “Any use of force or violence, disturbing the public peace, or any threat to use such force or violence, if accompanied by immediate power of execution by two or more persons acting together and without authority of law, is a riot.” (Pen. Code, § 404.) (Italics added.)

The court then followed with the instruction criticized by defendants and found fatally defective in this court by the majority re disturbance of the peace. This instruction merely. *372 amplified the instruction on riot. It…

Five members of the American Nazi Party, wearing party uniforms, steel helmets, and swastika armbands, picketed a meeting held to celebrate the fifteenth anniversary of the independence of Israel. Public disorder resulted, and all five were arrested, convicted, and sentenced on charges of conspiracy and assault. Three defendants have appealed.

The anniversary meeting was scheduled for 8:30 p.m. in the Shrine Auditorium. At 7:30 that evening defendant Holstein notified the police that he and four other members of the American Nazi Party intended to picket the meeting at 8 o'clock. When defendants arrived on the scene, the doors of the Shrine on Royal Avenue had not been opened, and a large crowd had gathered on the sidewalk outside the auditorium. The crowd extended along the sidewalk of Royal to Jefferson Boulevard, the street bounding the auditorium on the south. Two traffic officers were funneling pedestrians onto the corner of Royal and Jefferson, and two plainclothes officers assigned to interview the pickets were standing at the curb outside the entrances to the auditorium.

Defendants parked their automobile on Jefferson near Royal and walked to the corner in a…