has been set aside because of the court's failure to instruct the jury to this effect.31 The existence of this element, however, as a matter of fact, need not be proved. If the fighting is shown to have been in a public place, "the inference of law will be strong enough to import whatever terror may be a necessary ingredient."32

420. Prize Fighting.—To engage in a prize fight is a misdemeanor at common law, if it takes place under such circumstances as to constitute, or tend to cause, a breach of the public peace.

Prize fighting-fighting for a prize or reward33—is expressly punished by statute in many jurisdictions. It is not a distinct offense, eo nomine, at common law, but it is a misdemeanor at common law if it takes place in public, so as to constitute an affray or riot, or to otherwise constitute or tend to cause a breach of the public peace. It is not a lawful game at common law, as is a friendly boxing or wrestling match.34

421. Dueling. It is a misdemeanor at common law to fight a duel, or to send, or to knowingly bear, or to intentionally provoke, a challenge to fight a duel,

In a broad sense, any fighting of two persons, one against the other, by agreement, is a duel, but the term, as commonly used, implies such a fighting with deadly weapons.34a In some countries it is not unlawful, but it is a misdemeanor at common law

31 State v. Warren, 57 Mo. App. 502.

32 State v. Sumner, 5 Strob. (S. C.) 53, 56. And see Hawkins v. State, 13 Ga. 322, 58 Am. Dec. 517.

33 See Sullivan v. State, 67 Misc. 352, 7 So. 275. 341 East, P. C. 270; Rex v. Billingham, 2 Car. & P. 234; Rex v. Perkins, 4 Car. & P. 537. State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801; Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328. And see Com. v. Wood, 11 Gray (Mass.) 85.

34a A challenge to fight a fair fight without weapons is not dueling. State v. Fritz, 133 N. C. 725, 45 S. E. 957.

in England and in this country.35 It is also a misdemeanor at common law to give a challenge to fight a duel, either by words or by letter, or to knowingly be the bearer of such a challenge,36 or to designedly provoke such a challenge.37 To constitute the offense of dueling, it is not necessary that any injury shall be done.38 These acts are now punished in most jurisdictions by statute.39

422. Carrying Weapons.-There is a conflict of authority as to whether it was a misdemeanor at common law to go about armed with dangerous and unusual weapons, to the terror and alarm of the people, but carrying weapons or concealed weapons is very generally prohibited and punished by statute.

At Common Law.-In a well-considered Tennessee case it was held that it was no offense at all at common law for a man to go about in public places armed with dangerous and unusual weapons, where there was no fighting, or attempt to use the weapons, though it was alleged to have been done to the terror of the people.40 In North Carolina the contrary was held,11 and this decision seems to be supported both by general principles and by authority.42

41

Statutory Offense.-Carrying of weapons, except by certain

35 4 Bl. Comm. 145, 199; Com. v. Lambert, 9 Leigh (Va.) 603.

36 4 Bl. Comm. 150; 1 Hawk. P. C. c. 63, § 19; Com. v. Taylor, 5 Bin. (Pa.) 277; Rex v. Philipps, 6 East, 464. See Brown v. Com., 2 Va. Cas. 516.

87 2 Whart. Crim. Law, § 177.

38 See Com. v. Lambert, 9 Leigh (Va.) 603.

39 See Am. & Eng. Enc. Law (2d Ed.) tit. "Dueling."

40 Simpson v. State, 5 Yerg. (Tenn.) 356. As to whether it is an affray, see ante, § 419.

41 State v. Huntly, 3 Ired. (N. C.) 418, 40 Am. Dec. 416. And see State v. Lanier, 71 N. C. 288.

42 The statute of Northampton (2 Edw. III. c. 3), punishing such acts, has been said to have been merely declaratory of the common law. Knight's Case, 3 Mod. 117; State v. Huntly, 3 Ired. (N. C.) 418, 40 Am. Dec. 416. And Hawkins says that this was an offense at common law. 1 Hawk. P. C. c. 28, § 4.

privileged classes, was prohibited and punished by early English statutes. And in this country there are statutes in most states making it a misdemeanor to carry concealed weapons, except in certain cases.43

423. Unlawful Assembly.—An unlawful assembly, which is a misdemeanor at common law, is an assembly of three or more persons, either

1. With intent to commit a crime by open force.

2. Or with intent to carry out any common purpose, lawful or unlawful, in such a manner as to give firm and courageous persons in the neighborhood of the assembly reasonable grounds to apprehend a breach of the peace in consequence of it.**

44

To constitute an unlawful assembly, there must be a meeting of three or more persons-not less than three15—for such a purpose as is stated above. If persons who have assembled for a lawful purpose afterwards associate together to do an unlawful act, such association is equivalent to an assembling for that purpose.46 The purpose of the assembly may be to commit some crime, but this is not necessary. It may be to do any act, lawful or unlawful, provided the purpose is to be carried out in such a manner as to give firm and courageous persons in the neighborhood reasonable grounds to apprehend a breach of the peace.47

43 See Am. & Eng. Enc. Law (2d Ed.) tit. "Carrying Weapons." 44 Steph. Dig. Crim. Law, art. 70. And see 3 Inst. 176; 1 Hawk. P. C. c. 65, § 9; 4 Bl. Comm. 146; Beatty v. Gillbanks, 9 Q. B. Div. 308, 15 Cox, C. C. 138, Beale's Cas. 105; Reg. v. McNaughten, 14 Cox, C. C. 576; State v. Cole, 2 McCord (S. C.) 117; People v. Judson, 11 Daly (N. Y.) 1, 83; Reg. v. Vincent, 9 Car. & P. 91, Mikell's Cas. 43, n. 45 Post, § 425e.

46 State v. Cole, 2 McCord (S. C.) 117.

47 Steph. Dig. Crim. Law, art. 70; Reg. v. Neale, 9 Car. & P. 431; Rex v. Brodribb, 6 Car. & P. 571; Reg. v. Vincent, 9 Car. & P. 91.

Any meeting assembled under such circumstances as, according to the opinion of rational and firm men, are likely to produce danger to the tranquillity and peace of the neighborhood, is an unlawful assembly;

It is essential that the assembly shall either be for an unlawful object, or shall be tumultuous, and against the peace. For this reason, persons-as members of the Salvation Army, for example who assemble for a lawful purpose, and without any intention of carrying it out unlawfully, are not guilty of an unlawful assembly merely because they have good reason to believe that their assembly will be opposed, and that those who will oppose it will commit a breach of the peace.48 There must be no carrying out of the unlawful purpose, nor any movement towards carrying it out, for in such a case the offense becomes a rout or a riot.49 Both a rout and a riot, however, include unlawful assembly, and a man may be convicted of the latter on proof of the former.50

Statutes. In some jurisdictions, the statutory offense of unlawful assembly differs from the offense at common law. In New York, to sustain an indictment for unlawful assembly, it must be proved that three or more persons, being assembled, united in attempting or threatening an act "tending towards a breach of the peace, or an injury to person or property, or any unlawful act."51 A threat made by one or two persons only,

and, in viewing this question, the jury should take into their consideration the hour at which the parties meet, and the language used by the persons assembled, and by those who addressed them, and then consider whether firm and rational men, having their families and property there, would have reasonable ground to fear a breach of the peace, as the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. Reg. v. Vincent, 9 Car. & P. 91. 48 Beatty v. Gillbanks, 9 Q. B. Div. 308, 15 Cox, C. C. 138, Beale's Cas. 105.

49 Post, §§ 424, 425. "The difference between a riot and an unlawful assembly is this: If the parties assemble in a tumultuous manner, and actually execute their purpose with violence, it is a riot; but if they merely meet upon a purpose, which, if executed, would make them rioters, and, having done nothing, they separate without carrying their purpose into effect, it is an unlawful assembly." Per Mr. Justice Patterson in Rex v. Birt, 5 Car. & P. 154.

50 See State v. Stalcup, 1 Ired. (N. C.) 30.

51 Pen. Code N. Y. § 451, subd. 3; People v. Most, 128 N. Y. 108, 27 N. E. 970, 26 Am. St. Rep. 458 (anarchist case).

although in an assembly of many persons, is not within the statute.52 It need not affirmatively appear, however, that other persons present when the threat was made uttered or repeated the same words. Participation in the threat may be shown by the adoption by others of the language used, exhibited by their conduct.53 Threats of personal violence made in New York against persons in another state, and threats relating to acts not presently to be done, but to be performed at some future time, are within the statute.54

424. Rout.-A rout is where three or more persons, who have assembled in such a way as to constitute an unlawful assembly, make some advance towards doing an unlawful act. It is a misdemeanor at common law." 55

As in unlawful assembly, so in a rout, there must be at least

three persons. 56 "Rout" differs from "unlawful assembly" in

that there is something more than the mere assembling. Where three or more persons, who have assembled for the purpose of doing any unlawful act, make any movement or advance towards doing it, the offense is no longer a mere unlawful assembly, but becomes a rout. Thus, if three or more persons come together for the purpose of lynching or tarring and feathering a man, or of committing a trespass on land, and start out towards the place where the unlawful act is to be done, they are guilty of a rout.5 57

425. Riot (a) In General.-A riot is where three or more persons, who have assembled under such circumstances as to

52 People v. Most, supra.

53 People v. Most, 128 N. Y. 108, 27 N. E. 970, 26 Am. St. Rep. 458. 54 Id.

55 Steph. Dig. Crim. Law, art. 71; 4 Bl. Comm. 146; 1 Hawk. P. C. c. 65, § 14; State v. Sumner, 2 Speer (S. C.) 599; People v. Judson, 11 Daly (N. Y.) 1, 83.

56 See post, § 425e.

57 See authorities above cited.