§ 1002. Punishment.- The offense at common law is a misdemeanor, not in its nature infamous;1 but it is to be properly classed as a high misdemeanor where such classification of crimes is recognized. III. UNLAWFUL ASSEMBLY. § 1003. Defined. The nature of this offense is explained as being the assembling of three or more persons with a purpose,. which, if carried out, would constitute a riot; but IIawkins, who thus defines it, continues by saying that any meeting whatsoever, of great numbers of people, with such circumstances of terror as cannot but endanger the public peace, and arouse fears and jealousies among the king's subjects, seems properly to be called an unlawful assembly. Thus, it is said that an assembly of a number of persons, which, from its general appearance and accompanying circumstances, is calculated to excite terror, alarm and consternation, is criminal and unlawful; but if the assembly is for a lawful purpose and with no intention of carrying it out unlawfully, even though there is knowledge on the part of those assembled that they will be opposed, and with reason to suppose that a breach of the peace might be committed by those opposing, it will not be an unlawful assembly. Although a person is justified in arming himself and his friends for the defense of his house against those threatening to make an unlawful entry, he cannot thus assemble his friends to prevent trespass on his premises. The owner of a building has no authority to enter the same as against another lawfully in possession thereof, and an assembling to do so would be unlawful." § 1004. Intent sufficient.-The intent is the essence of the offense, which may be proved by a consideration of the time, place and circumstances of the act and speech of those assem 1 Clellans v. C., 8 Pa. St. 223. And see U. S. v. McFarlane, 1 Cranch, C. C. 163. 2S. v. Furlong, 26 Me. 69. 31 Hawk. P. C., ch. 65, § 9. For Blackstone's definition, see supra, § 991, n. See, also, Reg. v. Graham, 16 Cox, 420; 2 Bish. Cr. L., § 1256. 4 Rex v. Hunt, 1 Russ. Cr. 388; Rex v. Hunt, 3 Barn. & Ald. 566; Reg. v. Vincent, 9 C. & P. 91; Reg. v. Neale, 9 C. & P. 431. 5 Beatty v. Gillbanks, 9 Q. B. D. 308. 6 Rex v. Bishop of Bangor, 1 Russ. Cr. 274; 1 Hawk. P. C., ch. 65, § 10. 7 Meese v. S., 15 Neb. 558. bled. The assembling is unlawful without regard to the subsequent commission of a riot or any unlawful act. If an injury is done to a building or other property, there may be an offense distinct from that of unlawful assembling. § 1005. Statutory definition.- A New York statute provides that whenever three or more persons, being assembled, attempt or threaten any act tending towards a breach of the peace, or an injury to the person or property, or any unlawful act, such an assembly is unlawful; and under this it was held that a meeting at which speeches were made denouncing and threatening with death officers who had enforced the law against anarchists, and calling upon other persons to arm and resist the authority, the other persons of the assembly concurring in the views thus expressed, was an unlawful assembly. Dutcher v. S., 16 Neb. 30. Rex v. Birt, 5 C. & P. 154; Rex v. Woolcock, 5 C. & P. 516; Reg. v. MoNaughten, 14 Cox, 576. S. v. Johnson, 89 Ia. 594. 4 P. v. Most, 128 N. Y. 108. 190 CHAPTER 43. AFFRAYS AND BREACHES OF THE PEACE. I. AFFRAY. II. BREACH OF THE PEACE AND DISORDERLY Conduct. I. AFFRAY. § 1006. Defined.-The fighting of two or more persons in some public place, to the terror of the people, constitutes an affray.1 § 1007. Fighting by consent; mere words not enough.The fighting must be by mutual consent, and the mere fact that two parties are found fighting together raises no presumption that such fighting was by agreement.3 But one who aids, assists and abets is guilty as principal, although he was not himself engaged in the fight. The fact that defendant acted in self-defense would undoubtedly be a justification as against the charge of an affray; but if, after retreating, he returns and fights voluntarily, he is guilty. Mere words are not enough to constitute an affray; but if the parties use abusive and insulting language, and commit acts tending to violence, and this is done in a public place, it may amount to an affray. 14 Bl. Com. 145. Blackstone continues: "For if the fighting be in private, it is no affray, but an assault." And the feature of the offense as causing terror to the people is also emphasized by Hawkins, 2 P. C., ch. 63. For definition of the offense, see, also, 1 Russ. Cr. 291; 1 Bish. Cr. L., § 535; 2 id., § 1; Simpson v. S., 5 Yerg. 356; Pollock v. S., 32 Tex. Ap. 29. 2Klum v. S., 1 Blackf. 377; Metcalf V. P., 2 Colo. Ap. 262. In this an affray differs from an assault and battery: Duncan v. C., 6 Dana, 295. 'Klum v. S., 1 Blackf. 377. Evi 6 dence of previous fighting between the parties, and threats on the part of one of them to injure the other, is not admissible without some proof connecting the former encounter and threats with the affray: Skains v. S., 21 Ala. 218. 4 Hawkins v. S., 13 Ga. 322; Curlin v. S., 4 Yerg. 143. 5 Hunter v. S., 62 Miss. 540. 7 Hawkins v. S., 13 Ga. 322; O'Neill v. S., 16 Ala. 65; 1 Hawk. P. C., ch. 63, § 2. But a challenge to fight a duel is punishable: See infra, § 324. 8 Hawkins v. S., 13 Ga. 322. And if one person, by such abusive language toward another as is calculated and intended to bring on a fight, induces the other to strike him, he is guilty of an affray, though he does not return the blow.1 § 1008. In a public place. It must be alleged and proved that the fighting was in some public place in order to constitute an affray. It is not enough to allege that the fighting took place in a town or in a highway, but it seems that the indictment need not set forth a description of the place if it avers that the fighting was in a public place. It seems, also, that it is not necessary that the place be public ground in order to constitute it a public place. Thus, it was said that an inclosed lot ninety feet from a street and visible from the street was a public place. But, on the other hand, the mere presence of another person or persons at the fight does not make the place a public one, and it was held that a field surrounded by a forest situated a mile from any highway was private in its character, though others were present. § 1009. Indictment. A general allegation of fighting in a public place is not sufficient. It is necessary to show between whom the fighting took place; but it is said to be sufficient to allege that defendants did make an affray by fighting, or did. unlawfully and wilfully fight together, the time and place being designated; 10 and under such an indictment those charged may be convicted, although they did not fight against each other, but in common against a person not named." § 1010. Conviction of joint offense. This is an offense requiring the participation of more than one, and therefore if two are indicted they must be tried together, and a successful 1S. v. Fanning, 94 N. C. 940; S. v. Perry, 5 Jones, 9; S. v. Sumner, 5 Strobh. 53. Contra, O'Neill v. S., 16 Ala. 65. 2 S. v. Sumner, 5 Strobh. 53; S. v. Weekly, 29 Ind. 206; Reg. v. O'Neill, 6 Ir. R. C. L. 1. 3S. v. Heflin, 8 Humph. 84. 4 S. v. Weekly, 29 Ind. 206. S. v. Baker, 83 N. C. 649. 6 Carwile v. S., 35 Ala. 392. 7 Taylor v. S., 22 Ala. 15. 8 S. v. Vanloan, 8 Ind. 182; S. v. Woody, 2 Jones, 335. 9 S. v. Benthal, 5 Humph. 519; S. v. Priddy, 4 Humph. 428. 10 S. v. Billingsly, 43 Tex. 93. And in another case it is said to be sufficient to charge that defendants, being unlawfully assembled together, did then and there make an affray, to the great terror of the, etc.: S. v. Washington, 19 Tex. 128. 11 Thompson v. S., 70 Ala. 26. defense of one will operate as an acquittal of both;1 but if more than two are jointly indicted, the acquittal of one will not prevent the conviction of the others. One alone may be indicted, tried and convicted, although others are not convicted.' § 1011. Included offense.- Under an indictment for an affray there may be conviction for assault and battery. So if there has been conviction for assault and battery, that will not bar a subsequent prosecution for an affray." II. BREACH OF THE PEACE AND DISORDERLY CONDUCT. § 1012. What constitutes.-The term "breach of the peace is a very general one, including riots, unlawful assemblies and affrays; but aside from these offenses, which are specific crimes in themselves, statutes usually describe breaches of the peace so as to cover tumultuous and offensive carriage, quarreling, challenging, fighting, etc. An offense as thus defined may be committed without commission of an assault and battery or other crime, but of course an assault and battery or other such offense may also constitute a breach of the peace. Something will depend also on the time and place, and disregard of the Sunday laws may be a breach of the peace when it disturbs the quiet to which citizens are entitled in the enjoyment of the day.9 8 § 1013. Prize-fighting.— A mere sparring match does not constitute a breach of the peace,10 but such pugilistic exercises may be abused and carried beyond the limits of healthful and lawful exercise and sport and may thus become a breach of the peace, or even degenerate into a prize-fight." To constitute a crime it must appear that the parties fought together 12 1 Hawkins v. S., 13 Ga. 322. Contra, Cash v. S., 2 Overt. 198. 2 McClellan v. S., 53 Ala. 640. 3 S. v. Wilson, Phil. 238. 4 Thompson v. S., 70 Ala. 26; McClellan v. S., 53 Ala. 640; S. v. Allen, 4 Hawks, 356. But it is said the assault and battery must be separately charged: C. v. Perdue, 2 Va. Cas. 227. At any rate, to support a conviction for assault and battery, the indictment must contain all the substan tive allegations necessary to charge 7S. v. Farrall, 29 Conn. 72. 9 C. v. Jeandell, 2 Grant, 506. 11 S. v. Burnham, 56 Vt. 445; Seville v. S., 49 Ohio St. 117. 12 Sullivan v. S., 67 Miss. 346. |