William S. Doty, Pittsburgh, for appellant.
William S. Rahauser, District Atty., W. F. Cercone, Asst. District Atty., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 319]
Defendant, Nathan Albert, has appealed from a conviction and sentence on a bill of indictment charging inciting to riot.
Appellant contends that the evidence presented by the Commonwealth was not sufficient to sustain the verdict. The basis of the trouble out of which the prosecution arose was alleged racial discrimination in the use of the public swimming pool maintained by the City of Pittsburgh at Highland Park. Mixed groups on at least three Sundays prior to August 22, 1948,
[ 169 Pa. Super. Page 320]
had used the pool under police protection. On August 22d, one hundred sixty policemen were assigned to this area due to mounting tension and the likelihood of serious disturbance. On that day a mixed group came by trolley and was given police protection to the pool, a distance of about a quarter of a mile. A group which was opposed to such use of the swimming pool had collected in the vicinity; they were held back by the police. It was estimated that the number reached many hundreds by the middle of the afternoon.
Appellant arrived about 1:30 on the afternoon of August 22d and conferred with the so-called 'Progressive' group which was opposed to racial discrimination in the use of the pool. Minor disorders occurred from time to time, and there was hostility manifested between the respective factions. Police Lieutenant Baker who was in charge of the police, 120 of whom were in uniform and 40 in plain clothes, testified that appellant said to him, 'I hear you are going to have trouble here today,' and that he replied, 'If we are going to have trouble, we will be able to take care of it.' The opposition group had collected on the opposite side of Stanton Avenue from the pool. On at least three different occasions prior to 3:30 that afternoon, appellant signaled with his hands, then ran and was followed by a crowd apparently of the so-called 'Progressive' group, who wore 'Progressive Party' buttons. Appellant led this group toward those who had gathered on the opposite side of Stanton Avenue, as well as up and down the passageway leading from Stanton Avenue to the pool entrance. The police would break up the crowd and thus avert a conflict between the two contending factions. On the last occasion, when appellant was arrested, the police interceded and broke up the skirmish which followed, and prevented those on the opposite side of Stanton Avenue and the followers of appellant from coming together and engaging
[ 169 Pa. Super. Page 321]
in a serious altercation or riot which would have inevitably ensued. On that occasion Police Officer Walsh was badly injured, and Police Lieutenant Baker was beaten and bruised. About one-half hour prior to appellant's arrest, Police Officer Robinson was also injured. Following appellant's arrest the disturbances ended. Appellant had been at the pool previously and was known to some of the police.
Taking the stand in his own behalf, appellant admitted circulating among the 'Progressive' group. He denied that he had made any signals or that he ran or that he was knowingly followed by any person or group. He explained that he was there as an observer to see that the rights of all citizens were protected. He denied any intention to cause trouble. There was testimony to support his own version of his conduct. Appellant did not recall being present at a meeting of the 'Progressive' group on Wood Street, Pittsburgh, where racial discrimination was discussed and where he agreed to escort colored people to the pool on the Sunday afternoon in question. He admitted his presence at various meetings where racial discrimination was discussed. In rebuttal a Commonwealth witness, Matthew Cvetic, who had been present at the previous meeting of ...