constitute an unlawful assembly, actually engage in carrying out their unlawful purpose, or where three or more persons, who have assembled without any unlawful purpose, form and proceed to carry out such a purpose in a violent or tumultuous manner. It is a misdemeanor at common law.58

60

Riot includes unlawful assembly and rout.59 There must be at least three persons." When three or more persons, who have assembled for the purpose of doing any unlawful act, whether it be a crime or a mere civil trespass, actually engage in the execution of their unlawful purpose in a violent or tumultuous manner, they are guilty of riot.81 It is also a riot for three or more persons, who have assembled for a lawful purpose, or who happen to be together without any previous understanding, to determine upon doing an unlawful act in concert, and then engage in the execution of their unlawful purpose in a violent or tumultuous manner. 62 Even a lawful act may be done in such a manner as to render the doers guilty of riot. If three or more persons, acting in concert, engage in doing an act in a violent or tumultuous manner, thereby committing a breach of

58 Steph. Dig. Crim. Law, art. 72; 3 Inst. 176; 4 Bl. Comm. 146; 1 Hawk. P. C. c. 65, § 1; Reg. v. Cunningham, 16 Cox, C. C. 420, Mikell's Cas. 43, n.

59 State v. Stalcup, 1 Ired. (N. C.) 30; Dougherty v. People, 5 Ill. 179; Com. v. Gidney, 2 Allen (Mass.) 150.

60 See post, this section.

61 State v. Cole, 2 McCord (S. C.) 117; State v. Connolly, 3 Rich. (S. C.) 337; State v. Jackson, 1 Speer (S. C.) 13; People v. Judson, 11 Daly (N. Y.) 1, 83.

In Bell v. Mallory, 61 Ill. 167, a man claiming to have purchased a colt procured the assistance of two other persons to drive it from the range into an inclosure of the owner, and then, against the remonstrance of the owner, attempted to secure it and take it away, one of the other men being armed with a pistol, and threatening the owner on his interfering to prevent the taking. This was held to be a riot. When a number of persons tumultuously endeavor to rescue a prisoner from an officer, there is an act of violence, though no blow is struck. Fisher v. State, 78 Ga. 258.

62 State v. Cole, 2 McCord (S. C.) 117; State v. Snow, 18 Me. 346.

the peace, they are guilty of riot, whether their object be otherwise lawful or unlawful.68 That the parties intended merely a frolic or joke is no defense.64

(b) Concert of Action.-To render persons guilty of riot, they must act in concert.65 But the concert of action may exist in the execution of the act itself. It is not necessary that the

63 4 Bl. Comm. 146; 10 Mod. 116; State v. Connolly, 3 Rich. (S. C.) 337; State v. Brazil, Rice (S. C.) 257; Com. v. Runnels, 10 Mass. 518, 6 Am. Dec. 148; Green v. State, 109 Ga. 536, 35 S. E. 97. And see Kiphart v. State, 42 Ind. 273; Bankus v. State, 4 Ind. 114.

In State v. Brazil, supra, a band of eight or ten disguised and armed men had paraded the streets of a town at night, marching backward and forward, shooting guns and blowing horns, to the terror and alarm of the people. It was held that they were guilty of riot. It was said by the court in this case: "Even admitting the acts the defendants performed were not in themselves unlawful, yet they were calculated to excite terror and alarm, and in two of the cases were actually proved to have produced that effect."

In Indiana the statute makes it a riot for three or more persons to actually do an unlawful act of violence, either with or without a common cause of quarrel, or even to do a lawful act in a violent and tumultuous manner. See State v. Scaggs, 6 Blackf. (Ind.) 37. To violently and unlawfully burst open the door of another's dwelling house is within the statute. Id.

Pennsylvania v. Morrison, Add. (Pa.) 274, Mikell's Cas. 22. Several were indicted for riotously assembling and raising a liberty pole as an insult and indignity to certain federal and state commissioners. 64 State v. Alexander, 7 Rich. (S. C.) 5; State v. Brazil, Rice (S. C.) 257 (as to which case see the note preceding); State v. Brown, 69 Ind. 95; Backus v. State, 4 Ind. 114.

In State v. Alexander, supra, four persons went at midnight, upon concert, to the prosecutor's stable, for the purpose of shaving his horse's tail, and did so, making such a noise and disturbance as to arouse the prosecutor, and alarm the members of his family. It was held that they were guilty of riot.

65 Sloan v. State, 9 Ind. 565; Coney v. State, 113 Ga. 1060, 39 S. E. 425; Dixon v. State, 105 Ga. 787, 31 S. E. 750.

If a person, who is at a distance of thirty rods when a riot is committed by others, comes up immediately afterwards, and does violence upon the same person, but not acting in concert with the others, he is not guilty of riot, but of assault and battery. Sloan v. State, supra. It is otherwise if he is acting in concert with the others. Hibbs v. State, 24 Ind. 140.

C. & M. Crimes-41.

parties shall have deliberated or exchanged views with each other before entering upon the execution of their common purpose."

66

(c) Distinguished from Treason. The parties must be engaged in a private purpose, as distinguished from an attempt to overthrow or subvert the government, which is treason.67

(d) Breach of Peace and Terror to the People.-To con stitute a riot, the acts done must be against the public peace, or to the terror and alarm of the people.68 Many of the definitions of a riot expressly require that the acts shall be done to the terror or alarm of the people,—in terrorem populi. But if persons assemble to do an unlawful act, the apparent tendency of which is to inspire terror or alarm, and execute their purpose, it is not necessary to show affirmatively that people were in fact terrorized or alarmed. 69 The terror or alarm need not be to more than one person or one household.70

(e) Number of Persons.-Unless the rule is changed by statute, less than three persons cannot be guilty of an unlawful assembly, a rout, or a riot. There may be any number over two, but there must be at least three.71 It is not necessary, however, that three persons be indicted or be known. An indictment will lie against one or two persons for either of these offenses, if it be alleged and proved that there were three or more persons, and that the others are dead, or that their names are

66 People v. Judson, 11 Daly (N. Y.) 1, 84.

67 State v. Cole, 2. McCord (S. C.) 117; People v. Judson, 11 Daly (N. Y.) 1, 83.

68 State v. Cole, 2 McCord (S. C.) 117; Rex v. Cox, 4 Car. & P. 538. 69 State v. Alexander, 7 Rich. (S. C.) 5. See Com. v. Runnels, 10 Mass. 518, 6 Am. Dec. 148.

70 State v. Alexander, supra.

714 Bl. Comm. 146; Rex v. Scott, 3 Burrows, 1262; State v. O'Donald, 1 McCord (S. C.) 532. And see Turpin v. State, 4 Blackf. (Ind.) 72; Com. v. Berry, 5 Gray (Mass.) 93.

Under the Illinois statute, two persons may commit these offenses. See Logg v. People, 92 Ill. 598. The same is true under the Georgia statute. Prince v. State, 30 Ga. 27; Green v. State, 109 Ga. 536, 35 S. E. 97.

not known.72 Where three persons are together for a common unlawful purpose, it is not necessary, in order to make them all guilty of riot, that all should do some physical act. It is enough if two or even one of them does the unlawful act, if the others are present, abetting it.73

(f) Justification or Excuse.-Persons acting under lawful authority, as peace officers and soldiers, so long as they do not exceed their authority, either as to the thing done, or the manner of doing it, are not guilty of riot. But peace officers and soldiers may be guilty of riot if they act without authority, or in excess of their authority.74 Custom is no justification or excuse. 75

(g) Acts of One the Acts of All.-When three or more persons enter in concert upon the execution of an unlawful purpose, and the combination or concert is shown, the acts of one are the acts of all.76 To constitute a person a rioter, it is not necessary that he shall be actively engaged, or that he shall do any physical act of violence himself. It was said in substance in a New York case: The law does not distinguish between the relative degrees of violence on the part of individuals in a riot, but all who aid and assist in it are equally guilty. Any act in

72 Rex v. Scott, 3 Burrow, 1262; State v. Calder, 2 McCord (S. C.) 462; State v. Brazil, Rice (S. C.) 257.

73 State v. Straw, 33 Me. 554. See, also, Williams v. State, 9 Mo. 270; People v. Judson, 11 Daly (N. Y.) 1, 85.

74 State v. Cole, 2 McCord (S. C.) 117; Darst v. People, 51 III. 286; Douglass v. State, 6 Yerg. (Tenn.) 525.

In Darst v. People, supra, police officers and town trustees who proceeded to a man's house, broke down the door, and seized and carried away intoxicating liquors, without previous judicial determination that the man was guilty of maintaining a nuisance in violation of a statute, were convicted of riot, though the statute in terms authorized this mode of proceeding. It was held that the statute was unconstitutional in so far as it allowed such seizure without previous judicial proceedings, and, in effect, that it was no justification.

75 Bankus v. State, 4 Ind. 114; ante, § 84.

76 Bell v. Mallory, 61 Ill. 167; People v. O'Loughlin, 3 Utah, 133, 1 Pac. 653.

aid or furtherance of the common design is sufficient. It is not necessary that a party shall do any physical act, such as throwing a stone, or commit personal violence, or be armed with a weapon, or make use of threatening speeches. If, by any act of his, done with intent to create a riot, he assists to bring it about, or if, by signs, words, gestures, cries, shouting, or any other thing, he aids to promote or augment it, he is guilty."

426. Disturbance of Public Assembly.-Disturbance of any public assembly, whether the assembly be for the purpose of religious worship, or for some other lawful purpose, is a misdemeanor at common law.78

The reason why the disturbance of a public assembly is punished as a misdemeanor at common law is because it either amounts to a breach of the peace in itself, or because it has a direct tendency to cause a breach of the peace. The assembly need not be for the purpose of religious worship. It is a misdemeanor to disturb any public assembly.79 In most states, perhaps in all, such offenses are now expressly punished by statute.80

427. Disorderly Houses.-A house which is kept in such a way as to disturb the public peace, or to encourage or promote breaches of the public peace, is a disorderly house, and the keeping of the same is a misdemeanor at common law.

Some disorderly houses are of such a nature that they tend to corrupt the morals of the community, and the keeping of them

77 People v. Judson, 11 Daly (N. Y.) 1, 85. And see State v. Straw, 33 Me. 554; Williams v. State, 9 Mo. 270.

78 Com. v. Hoxey, 16 Mass. 385; State v. Jasper, 4 Dev. (N. C.) 323; State v. Linkhaw, 69 N. C. 214, 12 Am. Rep. 645; Bell v. Graham, 1 Nott & McC. (S. C.) 278, 9 Am. Dec. 687; Hunt v. State, 3 Tex. App. 116, 30 Am. Rep. 126. See, also, State v. Wright, 41 Ark. 410, 48 Am. Rep. 43; Lancaster v. State, 53 Ala. 398, 25 Am. Rep. 625.

79 See the cases above cited.

80 See Am. & Eng. Enc. Law (2d Ed.) tit. "Disturbing Meetings."