law a misdemeanor only, the punishment should, aside from statutory provision, be only that for a misdemeanor.1

III. EVIDENCE.

§ 988. Declarations and acts of co-conspirators. The rules of evidence relating in the prosecution of any crime to the weight to be given to the admissions of a co-conspirator and the necessity for corroboration are not for discussion here; for they have no peculiar connection with a prosecution for conspiracy. But as applied in prosecutions for the crime of conspiracy some statement of them is proper' in this chapter. One of these rules finding particular application in this connection is that the declarations of one of the conspirators in furtherance of the common design may be shown against the others, the fact of conspiracy having been established." And as such declarations may tend to show the object of the conspiracy, they are admissible even as against one who was not a party to it at the time they were made, but afterwards engaged therein. The same rule applicable to declarations is recognized as to acts of co-conspirators. As to other acts or declarations it is immaterial that they were not done or made in the presence of the conspirator against whom they are sought to be proven. This rule, allowing proof of other acts and declarations, is liberally applied in cases of insurrectionary conspiracies so as to allow public addresses, printed matter, and everything relating to the carrying out of the conspiracy, to be shown as against any one of the conspirators. Transactions

18. v. Jackson, 82 N. C. 565; S. v. Dyer, 67 Vt. 690; Bannon v. U. S., 156 U. S. 464.

2 Wilson v. P., 94 Ill. 299; Spies v. P., 122 Ill. 1: Seville v. S., 49 Ohio St. 117; P. v. Geiger, 49 Cal. 643; S. v. Simons, 4 Strobh. 266; C. v. O'Brien, 140 Pa. St. 555; Gill v. S., 59 Ark. 422; P. v. Trim, 39 Cal. 75; S. v. Banks, 40 La. An. 736; S. v. Ford, 37 La. An. 443; Cohea v. S., 11 Tex. Ap. 153; U. S. v. Graff, 14 Blatchf. 381; U. S. v. Lancaster, 44 Fed. R. 896; U. S. v. Cassidy, 67 Fed. R. 698; Rex v. Salter, 5 Esp. 225. Acts and declarations of those not

6

joined in the prosecution may be shown, if done or made in carrying out the conspiracy: Clune v. U. S., 159 U. S. 590.

3 Sands v. C., 21 Grat. 871; U. S. v. Logan, 45 Fed. R. 872.

4 U. S. v. Lancaster, 44 Fed. R. 896; U. S. v. Cassidy, 67 Fed. R. 698; Reg. v. Desmond, 11 Cox, 146; Reg. v. Blake, 6 Q. B. 126; Reg. v. Esdaile, 1 F. & F. 213.

5 P. v. McKane, 143 N. Y. 455; S. v. Anderson, 92 N. C. 732; S. v. Car. doza, 11 S. C. 195; U. S. v. Logan, 45 Fed. R. 872.

Spies v. P., 122 Ill. 1; Reg. v. Vin

other than those involved in the crime charged, for instance, the defrauding of other persons than those named in the indictment, by similar means, may be shown. The introduction of proof of declarations or acts of co-conspirators must be limited, however, to those made during the existence of the conspiracy. Declarations made by one of the conspirators before the formation of the conspiracy are not admissible as against the others;? nor are those made after the conspiracy is ended.' The general proposition is that the declaration, to be admissible as above indicated, must have been made while the person making it was himself a co-conspirator with the defendant.

§ 989. Proof of the existence of the conspiracy.— From what has been said in the preceding paragraph it is evident that acts and declarations of another are admissible as against defendant on the theory that such other person is a co-conspirator, only when that fact is established; but while it is usual to first introduce the evidence of the conspiracy before the proof of such acts or declarations is offered, yet the order of introduction of the evidence is in the discretion of the court, and in such discretion the acts or declarations may be received subject to the production of subsequent proof of the conspiracy which will make them available as against the defendant. But the fact of the conspiracy must be established by sufficient evidence to make out a prima facie case in order to justify the jury in considering the acts and declarations. The conspiracy itself cannot be shown by proof of acts of the alleged conspirators taken separately. Nevertheless, as the conspiracy

cent, 9 C. & P. 275; Reg. v. Shellard, 9 C. & P. 277; Reg. v. Duffield, 5 Cox, 404; Rex v. Hunt, 3 B. & A. 566.

Reg. v. Stenson, 12 Cox, 111; Reg. v. Whitehouse, 6 Cox, 38; Rex v. Roberts, 1 Campb. 399; Reinhold v. S., 130 Ind. 467.

'Spies v. P.. 122 Ill. 1; S. v. Cardoza, 11 S. C. 195; Bloomer v. S., 48 Md. 521: Devore v. T., 2 Okl. 562; Queen's Case, 2 Brod. & Bing. 302. The defendant can be sufficiently protected by instructions to the jury to disregard such acts and declara

2 Wilson v. P., 94 Ill. 299; Cox v. tions unless the conspiracy is proved: S., 8 Tex. Ap. 254.

3 Danville Bank V. Waddill's Adm'r, 31 Grat. 469; Logan v. U. S., 144 U. S. 263; S. v. Dean, 13 Ired. 63; Snowden v. S., 7 Baxt. 482; Ricks v. S., 19 Tex. Ap. 308; Reg. v. Blake, 6 Q. B. 126.

Sands v. C., 21 Grat. 871.

Loggins v. S., 12 Tex. Ap. 65. Conspiracy may be shown, even when not charged as a substantive offense, for the purpose of connecting defendant as accessory before the fact to the completed offense charged: Spies v. P., 122 Ill. 1.

Shields v. McKee, 11 Ill. Ap. 188;

itself may be made out by circumstantial evidence,1 proof of the carrying out of the general plan by those charged, and the committing of acts connected with the accomplishment of such plan, may show the conspiracy without proof of intimacy, private meetings, consultations, etc.2 The vital element is the fraudulent and corrupt combination, which must be proved either by direct evidence or through the explanation of such circumstances as necessarily tend to show it.'

§ 990. Necessity of corroboration. The general rule that one is not to be convicted of a crime on the confessions or declarations of an accomplice without corroboration is applicable where, as against defendant, it is sought to establish a conspiracy by proof of such confessions or declarations on the part of a co-conspirator.♦

Danville Bank v. Waddill's Adm'r, 31 Grat. 469.

1 S. v. Sterling, 34 Ia. 443; U. S. v. Barrett, 65 Fed. R. 62.

2 C. v. Warren, 6 Mass. 74; Ochs v. P., 124 Ill. 399; Spies v. P., 122 Ill. 1; S. v. Sterling, 34 Ia. 443; C. v. Eberle, 8 Serg. & R. 9; Reg. v. Brittain, 3

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Cox, 77; Rex v. Ferguson, 2 Stark. 489.

C. v. Ridgway, 2 Ashm. 247; Nail v. S., 70 Miss. 32; Reg. v. Taylor, 25 L. T. 75.

4U. S. v. Lancaster, 44 Fed. R. 896; U. S. v. Logan, 45 Fed. R. 872; U. S. v. Howell, 56 Fed. R. 21; U. S. v. Cole, 5 McLean, 513.

CHAPTER 42.

RIOT; UNLAWFUL ASSEMBLY

I. IN GENERAL

II. RIOT AND ROUT.

IIL UNLAWFUL ASSEMBLY.

I. IN GENERAL.

991. Nature of offenses.-These offenses are alike in that they involve the element of public disturbance by reason of combination, and require that three or more participate.1 Affray is a similar crime, elsewhere discussed, which may be committed by two. Other disturbances, not involving the element of combination, are discussed under another chapter relating to the breaches of the peace.

II. RIOT AND ROUT.

§ 992. Definition.- The definition given by Hawkins is the one which has been most frequently quoted: "A riot seems to be a tumultuous disturbance of the peace by three or more per

sons assembled together of their own authority, with the intent mutually to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature, and who afterwards actually execute the same in a violent and turbulent manner to the terror of the people, whether the act intended were of itself lawful or unlawful."1 Statutory definitions usually embody substantially the common-law notion, save that the element of unlawfulness in the assembling is usually omitted, it being sufficient that the persons assembled, whether with lawful intentions or not, shall proceed to do an unlawful act of violence, or any act in a violent and tumultuous manner.2

§ 993. Unlawfulness of act or manner.- Some form of violence seems an essential element of the crime of riot, and it was at common law usual to charge the act as accompanied with terror to the people in general. But this allegation is only necessary where the gist of the offense consists in the terror of the public by the conduct of the parties, and not where an act of violence is charged.

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11 Hawk. P. C., ch. 65, § 1; 1 Russ. Cr. L. 266. This has been expressed in somewhat more modern language, as follows: A riot is a tumultuous disturbance of the peace by three or more persons assembled together of their own authority with the intent mutually to assist each other against any who shall oppose them, and putting their design into execution in a terrifying and violent manner, whether the object was lawful or not:" S. v. Connolly, 3 Rich. 337. The essence of Hawkins' definition is repeated in an abbreviated form in S. v. Cole, 2 McCord, 117. Bishop's definition is probably theoretically sufficient. It is certainly concise: "A riot is such disorderly conduct in three or more assembled persons, mutually accomplishing an object, as is calculated to terrify others: 2 Bish. Cr. L., § 1143.

2 Dougherty v. P., 5 Ill. 179; Logg v. P., 92 Ill. 598; Davenport v. S., 38 Ga 184; Rachels v. S., 51 Ga. 374;

There are many illustra

Stafford v. S., 93 Ga. 207; Blackwell v. S., 30 Tex. Ap. 672; U. S. v. McFarland, 1 Cranch, C. C. 140; U. S. v. Dunn, 1 Cranch, C. C. 165. It is sufficient if the facts shown constitute an attempt to commit an act of violence, which, if completed, would be an indictable offense: S. v. York, 70 N. C. 66. But in an earlier case in the same state it was said that, if the assembly is lawful, the subsequent ill-conduct on the part of the persons assembled will not make them rioters: S. v. Stalcup, 1 Ired. 30. 3 S. v. Russell, 45 N. H. 83; Scott v. U. S., Morris, 142.

4 S. v. Voshall, 4 Ind. 589; Rex v. Cox, 4 C. & P. 538; Rex v. Hughes, 4 C. & P. 273; 2 Bish. Cr. Pr., § 997.

5 S. v. Whitesides, 1 Swan, 88.

6 C. v. Runnells, 10 Mass. 518; Thayer v. S., 11 Ind. 287. It seems that if any one person is terrified this is sufficient to substantiate such a charge in the indictment: Reg. v. Langford, Car. & M. 602. But where