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I. UNLAWFUL ASSEMBLY, Š 2473.
1. DEFINITION, $ 2475.
POSE, S 2476.
ROR, S 2477. 4. RIOTOUS TO TUMULTUOUSLY ASSERT
LEGAL RIGHTS, $ 2478. 5. Riot ACT NEED NOT BE READ, S
2479. 6. ALL PRESENT, AND NOT SUPPRESS
ING, ARE PARTICIPANTS, $ 2480.
IN A FAMILY, OR EVEN A SINGLE
I. UNLAWFUL ASSEMBLY. § 2473. ANY tumultuous disturbance of the public peace by three persons or more, having no ostensible legal or constitutional object, assembled under such circumstances, and deporting themselves in such a manner as to produce danger to the public peace and tranquillity, and which excites terror, alarm, and consternation in the neighborhood, is an unlawful assembly.a But in determining the question of terror, it has been said, that the jury are to consider whether rational and firm men, in charge of families, would have, under the circumstances, cause for anxiety; and in testing this it is necessary to take into account the hour at which the parties meet, the language used
a 4 Penn. Law Jour. 31 ; R. v. Birt, 431. For a clear exposition of the 5 C. & P. 154; R. v. Hughes, 4 C. & difference between unlawful assemP. 373. See article on “Riot,” &c., bly and riot, see R. v. Kelly, 6 Up. Am. Law Mag. for July, 1844; 2 Can. C. P. 372, where a conviction West. Law Jour. 49; R. v. Hunt, 1 of riot was set aside on proof that Russ. C. & M. 388 ; R. v. Hunt, 3 there was no overt act of public disB. & A. 566; R. v. Neale, 9 C. & P. order.
by them, and the acts done. b But this is a harsh measure. The true standard is the mental and nervous capacity of those to be affected by the defendants' violent demonstrations.
II. ROUT. § 2474. A rout is an attempt at riot made by an unlawful assembly. Such preparatory steps must have been taken as would lead, if carried out, to a riot. At least three persons are essential to constitute the offence. C
1. Definition. $ 2475. A riot is a tumultuous disturbance of the public peace by three persons or more assembling together of their own authority with an intent mutually to assist one another against any who shall oppose them in the execution of some private object, and afterwards executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended is lawful or unlawful. d
2. Must be a Joint Unlawful Purpose. $ 2476. An unlawful assembly is an essential prerequisite ; e but an assembly meeting lawfully can be converted into one unlawfully, by the concerted determination, however sudden, to effect an unlawful purpose. f
3. Must be likely to inspire Terror. § 2477. It must be also shown in riot that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least of an apparent tendency thereto, as were calculated to inspire people with terror, g such as being armed, using threatening speeches, turbulent gestures, or the like. h If an assembly of persons be not accompanied with such circumstances as these, it can never be deemed a riot, however unlawful
6 R. v. Vincent, 9 C. & P. 91. e State v. Stalcup, 1 Iredell, 30.
ci Hawk. P. C. c. 65, s. 1; State fi Hawk. c. 65, s. 3; State . v. Sumner, 2 Spear, 599.
Snow, 18 Maine, 346 ; State v. Cole, 2 d i Hawk. P. C. c. 65, s. 1; 1 Russ. McCord, 117. on Cr. 265; State v. Connolly, 3 Rich. g R. v. Hughes, 4 C. & P. 373. 337.
h i Hawk. c. 65, s. 5.
their intent, or however unlawful the acts which they actually commit. i But by proof of concert to do an unlawful act, followed by any such act performed tumultuously in such a way as to strike terror into third parties, the charge of riot may be sustained.j
4. Riotous to tumultuously assert Legal Rights. § 2478. Even a lawful act may be done in such a violent and tumultuous manner, that the parties may be convicted of a riot. No body of men is justified in asserting legal rights by violence; and a lawful assembly becomes unlawful, whenever the members agree to resort to violent and tumultuous measures to achieve even a lawful end.k If the object, however, of the assembly be lawful, it in general requires stronger evidence of the terror of the means to induce a jury to return a verdict of guilty, than if the object were unlawful ; and it has even been holden that if a number of persons assemble for the purpose of abating a public nuisance, and appear with spades, iron crows, and the proper tools for that purpose, and abate it accordingly, without doing more, it is no riot, l unless threatening language or other misbehavior, in apparent disturbance of the peace, be at the same time used. m
5. Riot Act need not be read. § 2479. It is not necessary, under the English statute, that the riot act should be read to constitute a riot. Before the proclamation can be read, a riot must exist; and the effect of the proclamation will not change the character of the meeting, but makes those guilty of a felony who do not disperse within one hour after the proclamation is read. n i Ibid.; Dalt. c. 137.
J. 33, post, § 2936; a charge which is j State v. Brazil, Rice R. 258; the ablest exposition I know of the Penns. v. Cribs, Add. 277; Douglass law of riot. For distinctive Missouri r. State, 6 Yerger, 525.
law on this point, see Smith v. State, k 1 Hawk. C. 65, s. 7; State v. 14 Mo. 147. Brook, 1 Hill's S. C. 362; Douglass | Dalton, c. 137. v. State, 6 Yerger, 525; State v. Snow, 18 Me. 346. See, also, the n R. v. Furzey, 6 C. & P. 81; State charge of Judge King, in 4 Penn. L. r. Russell, 45 N. H. 83.
6. All Present and not suppressing are Participants. § 2480. In riotous and tumultuous assemblies, all who are present and not actually assisting in their suppression, in the first instance, are, in presumption of law, participants ;0 and the obligation is cast upon a person so circumstanced, in his defence, to prove his actual non-interference. p Eminently is this the case when the sheriff of a county, the mayor of a city, or any other known public conservator of the peace, has repaired, in the discharge of his duty, to the scene of tumult, and there commanded the dispersion of the unlawful riotous assembly, and demanded the assistance of those present to aid in its suppression. After such proclamation there can be no neutrals. The line is then drawn between those who are for and those who are against the maintenance of order, and with the forces of the one or the other, all who see fit to remain must promptly arrange themselves. Those who continue looking on while the active rioters are resisting the public authorities, and daringly moving on to the consummation of their designs of destruction ; who refuse to join with the authorities, and witness their defeat without striking one blow in aid of outraged law, are just as much rioters as those most active in the work of violence; and, in such circumstances, it will avail them nothing that they appear only passive lookers on, instead of active rioters and incendiaries. Thus, in the Philadelphia riots of May, 1844, after the rioters had completed their work of mischief in Kensington, they proceeded to the city and collected in front of St. Augustine Church, threatening its destruction. The mayor of the city, placing himself at the head of a police force, repaired to the scene of violence. The keys of the church were delivered to him by that part of the congregation who previously had them in charge, and the church was left in the immediate custody of the law, no attempt or effort being made to otherwise defend it. The mayor seeing no disposition in the multitude to retire, addressed them, urging and commanding them to depart in peace, and soliciting all good citizens to unite with him in accomplishing this so much to be
o R. v. Howell, 9 C. & P. 437; p R. v. Howell, 9 C. & P. 437. State v. Bugbee, 22 Vt. 32; Roberts See contra, State v. McBride, 19 Mo v. O'Conner, 33 Me. 496 ; Com. v. 239. Hadley, 11 Met. 66. See post, $ 2936.
desired object. He was received with insults and imprecations, and actually assaulted, his officers forcibly driven off, and the church, which had been given up to his protection, and that of the law, was set fire to and consumed. It was held, that under such circumstances, all who composed the assembly, whether active participants or apparent spectators, were equally rioters, if not assisting the officers of the law. And this applies even to those who leave the scene before the riot is consummated, if they countenanced any preliminary movements inciting to the subsequent riotous acts. r
§ 2481. While, however, it would be unwise for the court, in laying down the law to the jury, to relax the principle that presence implies participancy, it is not improper, should a conviction take place upon evidence of presence alone, for the court in grading its sentence, to recollect — to use the pertinent language of Judge Daly, on the trial of the Astor Place riots -- that “so strong is human curiosity, that even well-disposed citizens are attracted by the excitement. To courageous minds there is a fascination in the very presence of danger, and a distinction must be carefully drawn between those who were mere lookers on, and those who were stimulating and encouraging the riot.” 8
7. Enough if Terror be produced in a Family, or even in a sin
gle Person. No specific Orbit of Terror is limited by the
Law which must be filled to constitute Riot. § 2482. There are no cases which say that the terror must be in any sense general. The authorities, on the contrary, indicate that it is enough if a single family or person be terrified. Thus where the defendants, three in number, went at midnight on a frolic to the house of a third person, where they shaved his horse's tail, and made some noise which disturbed his family, it was held, that they were guilty of riot;t and where it appeared that two white persons and a negro went together where J. B. was at work ; that, upon their arrival there, one of the white persons cut a club, in the presence of the other two, used threat
9 Per King, J. 4 Penn. Law Jour. s 2 Western Law Journal (N. S.), 33; Penn. v. Cribs, Add. 277; Wil- 75. liams v. State, 9 Mo. 268. Post, $ 2936. t State v. Alexander, 7 Richard
r State ». Blair, 13 Richardson, 93; son, 5. R. v. Sharpe, 3 Cox C. C. 288.