Young

The evidence in this case discloses that a group of five hundred or more people, members of various organizations, journeyed in a motor caravan from the city of Los Angeles to the city of San Diego on May 30, 1933', for the purpose of meeting to protest against “imperialistic war”. They assembled in Newton Park in the city of San Diego on the afternoon of the day in question. Speeches were made and at the close of the meeting the chairman announced that an application had been made to the cit)council of the city of San Diego for permission to parade, but that the request had been refused. He called for a vote as to whether or.not a parade should be held. No negative votes were cast and the leaders commenced to form the assembly in a column of four or five persons abreast. They were carrying many banners mounted on sticks or staffs which had been displayed during the meeting. During the formation of the column for the parade a riot ensued, which members of the San Diego police force attempted to quell. During the course of the riot Police Officer Agnew was struck with a club and very seriously injured, one of his shoulders being crushed and his wrist broken. Police Officer Jensen…

I dissent.

I will not make any statement of the facts, as I conceive them to be disclosed by the record, because I do not think such a statement necessary to present my view of the question in issue here.

I am in accord with the majority opinion in holding the ordinance in question unconstitutional. However, with the conclusion holding such instruction unnecessary and not prejudicial, I cannot agree.

Unquestionably, during the whole trial, the prosecution sought to justify the arrest, when the assault occurred, by such ordinance, and the court instructed the jury that the acts attempted to be prohibited by the void ordinance were in fact prohibited by terms of a penal law, and in effect, thereby, instructed the jury that if they found the person sought to be arrested was doing any act forbidden by said ordinance, he was thereby committing a misdemeanor. Inasmuch as it appears that the person sought to be arrested at that time and place was admittedly carrying a banner which, it is claimed, was a violation of said ordinance and that he was doing so in the presence of a police officer who attempted to arrest him then and there, the effect of the instruction was to tell the jury…