ing must be by or between two or more persons; and, third, it must be in some public place to cause terror to the people. Hence it must follow, that, if either of these requisites is wanting, an affray does not exist." 1 § 19. Allegation of Place. The above form states the place to be "a certain public street and highway;" which is undoubtedly sufficient, because the court can see that it is public. But the mere words "in the town of Clarksville" were adjudged inadequate. Plainly enough the allegation may be either in terms that the place was public, or it may set out facts making it so in point of law.1 § 20. "Fighting together." - Properly the indictment should allege a "fighting together "5 by the defendants; and, if it omits the word "together," and does not say with whom they fought, it would seem to be inadequate. Still § 21. "Together" implied. It was in Tennessee adjudged sufficient to charge that, at a time and place, the defendants, "being unlawfully assembled together, and arrayed in a warlike manner, then and there, in a public place, unlawfully, and to the great terror and disturbance of all the good citizens of said State then and there assembled, did make an affray by fighting, in contempt of the laws of the State."7 "Assembled unlawfully" § 22. Arrayed in Warlike Manner." In the defective form first above given, the pleader undertakes to supply the lack of good averment by the insertion of what is useless. To constitute an affray the parties need not be "assembled unlawfully," or "arrayed in a warlike manner;" hence the indictment need not allege that they were. And, unless they were in fact, it is practically better to omit this allegation. So that § 23. A Better Form-is to allege, that, at a time and place, they, in a certain public street and way there situate, did make an affray, by then and there fighting together, to the terror of the people then and there lawfully being.9 1 Whyte, J. in Simpson v. The State, And see The State v. Billingsley, 43 Texas, 93; The State v. Wilson, Phillips, 237. 5 Yerg. 356, 358. 2 The State v. Heflin, 8 Humph. 84. 8 Shelton v. The State, 30 Texas, 431. See, for illustration, post, § 914. 5 Ante, § 16. 7 The State v. Benthal, 5 Humph. 519. 8 Ante, § 16. See the cases cited to the preceding 6 The State v. Vanloan, 8 Ind. 182. sections. § 24. Statutory Affray of Prize-Fighting. - A statute having made punishable "every person who shall, by previous appointment or arrangement, meet another person and engage in a fight," it was held adequate in an indictment against one to allege that he, at a time and place, "by and in pursuance of a previous appointment and arrangement made to meet and engage in a fight with another person, to wit, with one B, did meet and engage in a fight with the said B." No more specific setting out of the previous appointment, or of the arrangement made, or of the other acts of the defendant, was deemed necessary.2 - § 25. Minor Offences included (Assault and Battery). In definition, an affray would seem to include, but perhaps not necessarily, an assault and battery. Yet the indictment, in the forms before given, does not charge such assault and battery in any technical way. It may evidently be so drawn as to do this; and, on principle, if it is, there may be a conviction for assault and battery, or for a simple assault, on the indictment for affray.1 But if the indictment is otherwise drawn, there cannot be such conviction. Such is the rule in principle. On authority, it is not easy to say how the law is.6 § 26. Both convicted or neither. - If two are indicted for affray in assaulting each other, one cannot be convicted of the full offence if the other is acquitted. But, in special cases, the form of the indictment or statute may admit of such conviction of one alone.3 1 Prize-Fighting. For the law of prize-fights, see Crim. Law, I. § 535, 632, 658; II. § 35; Champer v. The State, 14 Ohio State, 437; The State v. Wilson, Phillips, 237; post, § 61. 2 Commonwealth v. Welsh, 7 Gray, 324. On the trial, the previous arrangement may be inferred from the conduct of the parties, and from other circumstances. It need not be proved to have been made within the State, or at a time and place distinct from those of the fight. Commonwealth v. Mitchell, 7 Gray, 324. Leaving the State, &c. - For the form upon the statute against leaving the State to engage in a fight, see Commonwealth v. Barrett, 108 Mass. 302. Crim. Law, II. § 1, 23, 35. assault and battery, see The State v. Allen, 4 Hawks, 356; Cash v. The State, 2 Tenn. 198. That there may not be, see Commonwealth v. Perdue, 2 Va. Cas. 227. Barring Trial for Assault. In North Carolina it was held, that, where a party has been tried in a county court for affray, he cannot be again tried for the same act in the Superior Court charged as assault and battery; because, said Battle, J. the charge of an affray "necessarily includes that of the assault and battery for which the second indictment was found." The State v. Stanly, 4 Jones, N. C. 290, 292. • 7 Hawkins v. The State, 13 Ga. 322. But see Cash v. The State, 2 Tenn. 198. 8 The State v. Wilson, Phillips, 237; 4 McClellan v. The State, 53 Ala. 640. McClellan v. The State, 53 Ala. 640; § 27. Evidence. - Relating to the evidence, we have a few cases, but they involve no principles requiring a separate consideration. § 28. Participants. This being a misdemeanor, all who, in any way, so abet the affray as to become punishable, are principals.2 § 29. Higher Offence - (Homicide). — If what the parties meant for an affray results in a higher offence, as, for example, murder,3 — practically the indictment will in general be for the higher. And § 30. Kindred Offence. There are various other offences akin to this, sometimes even called in the books by the same name. When, therefore, an indictment is inadequate for affray, it is not necessarily bad. 1 Herriott v. The State, 1 McMul. 126; Klum v. The State, 1 Blackf. 377; Skains v. The State, 21 Ala. 218. 14 ? Curlin v. The State, 4 Yerg. 143. CHAPTER III. ARSON AND OTHER BURNINGS.1 § 31, 32. Introduction. 33-49. Indictment. 50-53. Evidence. § 31. What allege and prove. As constituting this offence, it is necessary to allege and prove 1. A malicious burning 2 of 2. A house, if the indictment is at common law; or, if under a statute, some structure the burning of which the statute makes punishable;+ 3. At common law, belonging to another; or, under some of the statutes, one's own to the injury of another." § 32. Indictments mainly Statutory. Though this is a commonlaw offence, it has been so extended and defined by statutes that nearly all indictments for it are in practice statutory. §33. Common-law Form. The common-law indictment charges that the defendant, at a time and place, "a certain house of one B, there situate, did feloniously, wilfully, and maliciously set fire to and burn.” ī § 34. "House" or "Dwelling-house." The technical and proper word to designate the structure is "house;" though, as "dwell 289. For the law relating to this title, see 11; Stat. Crimes, § 207, note, 213, 277, Crim. Law, II. § 8 et seq. And for various statutory burnings, see Stat. Crimes, § 535-538; also, ib. § 207, 213, 277, 289, 310, 311, 363. 2 Crim. Law, I. § 224, 318, 329, 334, 659, 765; II. § 10; Stat. Crimes, § 310. Crim. Law, I. § 318, 329, 559; II. § 8, 4 Stat. Crimes, 535-538; Crim. Law, II. § 17. 5 Crim. Law, I. § 514; II. § 12. 7 Matthews Crim. Law, 436; 3 Chit. Crim. Law, 1127. See also post, § 35. 66 ing-house" is of like meaning but narrower, perhaps the substitution of it would not render the indictment bad. If the statute has dwelling-house," the indictment must employ it, and the word "house," being of broader meaning, will not do. If the arson is of an out-building which is a part of the house, still, at common law, the term in the allegation to designate it should be "house." 2 But Statutory Term. Where a statute makes punishable the burning, for example, of " any house, barn, or out-house," an indictment upon it may describe the structure by its statutory name of "barn," or "out-house," if such it is, though it remains at common law parcel of the house. § 35. Form under Statute. -The pleader should consider, in drawing the indictment upon a statute, whether the offence is felony or misdemeanor, alleging it to have been committed "feloniously" if felony, though the word is not in the statute; 5 should use whatever statutory terms are needful according to explanations in another connection,6 and should otherwise conform to the rules for indictments on statutes; but, beyond this, he may follow the common-law form. As to both, § 36. Allegation of Ownership: Whether necessary. As, at common law, one cannot commit arson by burning his own house, and as he cannot under statutes except in the circumstances they specify, the indictment must, in some way, show that the house was not the defendant's, or that it was his in conjunction with the statutory circumstances.8 Moreover, for various reasons, each particular offence, of whatever sort, should be identified. 1 Stat. Crimes, § 277, 289. Where, in an indictment upon a statute which had the word "dwelling-house," the allegation was, that the defendant set fire to a house "used as a dwelling-house," being the property of A. B., this was held to be sufficient. McLane v. The State, 4 Ga. 335. And see Page v. Commonwealth, 26 Grat. 943. 21 Hawk. P. C. 7th ed. c. 39, § 1, 2; 3 Inst. 67; Stat. Crimes, § 278, 289; post, $135. 8 Stat. 9 Geo. 1, c. 22. 4 Rex v. North, 2 East P. C. 1021; Page v. Commonwealth, 26 Grat. 943. And see, as to the statutory word to desig Both of these objects may be nate the structure, Commonwealth v. 5 Vol. I. § 533-537; post, § 42. 7 Ante, § 31. 8 And see Reg. r. Newboult, Law Rep. 1 C. C. 344, 346, 347, 12 Cox C. C. 148 Vol. I. § 506, 507, 566. |