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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 enterprise of a private nature, and afterwards actually executing 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). Hawk. P. C. b. 1, c. 65, s. 1.
The indictment for a riot must conclude in terrorem populi. Hughes's case, 4 C. and P. 373 (a).
The punishment for a riot is fine or imprisonment or both, and by the 3 Geo. 4, c. 114, the imprisonment may be with hard labor.
Proof of the unlawful assembling.] An unlawful assembling must be proved, and, therefore, if a number of persons, met together at a fair, suddenly quarrel, it is an affray, and not a riot, ante, p. 243 ; but if, being so assembled, on a dispute occurring, they form into parties, with promises of mutual assistance, and then make an affray, it will be a riot ; and, in this manner, any lawful assembly may be converted into a riot: so a person, joining rioters, is equally guilty, as if he had joined them while assembling. Hawk. P. C. b. 1, c. 65, s. 3.
Proof of the violence or terror.] Evidence must be given of some circumstances of such actual force or violence, or, at least, of such apparent tendency thereto, as are calculated to strike terror into the public; as a show of arms, threatening speeches, or turbulent gestures. Hawk. P. C. b. 1, c. 65, s. 5. But it is not necessary that personal violence should be done or offered. Thus, if a number of persons come to a theatre, and make a great noise and disturbance, with the predetermined purpose of preventing the performance, it *will be a riot, though [ *819 ] no personal violence is done to any individual, and no injury done to the house. Clifford v. Brandon, 2 Campb. 358. But the unlawfulness of the object of an assembly, even though they actually carry their unlawful object into execution, does not constitute a riot, unless accompanied by circumstances of force or violence; and in the same manner, three or more persons assembling together, peaceably, to do an unlawful act is not a riot. Hawk. P. C. b. 1, c. 65, s. 5.
In some cases in which the law authorizes force, the use of such force will not constitute a riot, as where a sheriff or constable, or perhaps even a private person assembles a competent number of persons, in order with force to suppress rebels, or enemies, or rioters. Hawk. P. C. b. 1, c. 65, s. 2. So a private individual may assemble a number of others to suppress a common nuisance, or a nuisance to his own land. Thus where a weir had been erected across a common navigable river, and a number of persons, assembled, with spades and other necessary instruments, for removing it, and did remove it, it was held to be neither a forcible entry nor a riot. Dalt. c. 137. So an assembly of a man's friends at his own house, for the defence of his person, or the possession of his house, against such as threaten to beat him, or to make an unlawful entry, is excusable. Burn, 278.
(1) State v. Brook & al., 1 Hill, 362.
(a) Eng. Com. L. Rep. vis. 4:25.
Proof of the object of the rioters-private grievance.] It must appear that the injury or grievance complained of, relates to some private quarrel only, as the inclosing of lands in which the inhabitants of a certain towa claim a right of common, for where the intention of the assembly is to redress public grievances, as to pull down all the inclosures in general, an attempt with force to execute such intention, will amount to high treason. Hawk. P. C. b. 1. c. 65, s. 6. Where the object of an insurrection, says Mr. East, is a matter of a private or local nature, affecting, or supposed to affect, only the parties assembled, or confined to particular persons or districts, it will not amount to high treason, although attended with the circumstances of military parade usually alleged in indictments on this branch of treason. As if the rising be only against a particular market, or to destroy particular inclosures, (see Birt's case, 5 C. and P. 154 (a)), to remove a local nuisance, to release a particular prisoner, (unless imprisoned for high treason,) or even to oppose the execution of an act of parliament, if it only affect the district of the insurgents, as in the case of a turnpike act. 1 East, C. P. 75.
Proof of the execution of the act for which the rioters are assembled.] The act for the purpose of executing which the rioters are assembled must be proved, otherwise the defendants must be acquitted. Where persons assemble together for the purpose of doing an act, and the assembly is such as hereinbefore described, if they do not proceed to execute their purpose, it is but an unlawful assembly, not a riot; if after so assembling ( *920 ] they proceed to execute the act for *which they assembled, but do not execute it, it is ternied a rout; but if they not only so assemble but proceed to execute their design, and actually execute it, it is then a riot; 1 Hawk. c. 65, s. 1; Dalt. c. 136; Birt's case, 5 C. and P. 154 (6).
Proof of the guilt of the defendants.] In proving the participation of the defendants in the riot, it is not, as it seems, competent to the prosecutor to prove a riot in the first instance, and afterwards to connect the prisoners with such riot. Where the counsel for the prosecution was pursuing this course, Alderson, J., interposed, and said that he must identify the prisoners as having been present. ' He stated that it had been held by the judges at the special commission at Salisbury, in 1830, that the prisoners must first be identified as having been present, forming part of the crowd, and that the fifteen judges had confirmed the holding of the special commission. Nicholson's case, 1 Lewin, C. C. 300 (1).
In the above case, it was stated by the counsel for the prosecution, that an opposite course had been pursued in the Manchester case. And the latter mode of proof is adopted in cases of conspiracy. See ante, p. 372.
On the trial of an action of trespass, the issues were, whether a conspiracy had existed to excite discontent and disaffection, and also whether there had been an unlawful assembly to the terror of the inhabitants of the town of Manchester. For the purpose of proving the affirmative, evidence was offered of large bodies of men having been seen, on the morning of the day in question, marching along the road, and of expres
(1) Penn. o. Craig & al., Addis. 191. Penn. o. Cribs & al., Ibid. 277.
(@) Eng, Com. L. Rep. xxiv. 252. (b) Id.
sions made use of by them tending to show that they were proceeding to a place called Whitemoss, for the purpose of being drilled. Evidence was also offered of drillings in the neighborhood of Manchester, previous to the meeting, and a witness was asked whether the proceedings which he saw created any aların in bis mind. Another witness stated that he saw several parties of men proceeding to the place where there had been drillings, and he was asked as to their having solicited him to join them, and as to declarations made by some of those persons with regard to the object and purpose of their going thither. The whole of this evidence was objected to, but was admitted by Holroyd, J., and on a motion for a new trial, the Court of King's Bench held that it had been rightly received. Redford v. Birley, 3 Stark. N. P. 76 (@) (1).
Proof upon prosecutions under the riot act.] By the I Geo. 1. stat. 2, c. 5, s. 1, commonly called the riot act) it is enacted, “ that if any persons to the number of twelve or more, being unlawfully, riotously, and iumultuously assembled together, to the disturbance of the public peace, and being required or commanded by one or more justice or justices of the peace, or by the sheriff of the county, or by his under-sheriff, or by the mayor, bailiff, or bailiffs, or other head officer or justice of the peace of any city or town corporate where such assembly shall be, by proclamation, to be made in the King's name in the form thereinafter die rected, to disperse *themselves, and peaceably to depart to their [ *321 ) habitations or to their lawful business, shall to the number of twelve or more (notwithstanding such proclamation made), unlawfully, riotously, and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, that then such remaining or continuing together, to the number of twelve or more, after such command or request made by proclamation, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, (and shall suffer death, -as in the case of felony, without benefit of clergy.]”
By s. 5, opposing and hindering the making of the proclamation shall be adjudged felony, without benefit of clergy, and persons assembled to the number of twelve, to whom proclamation should have been made, if the same had not been hindered, not dispersing within an hour after such hindrance, having knowledge thereof, shall be adjudged felons (and suffer death.]
Now by the 7 Wm. 4 and 1 Vict. c. 91, s. 1, after reciting (inter alia) the above statute, it is enacted, "that if any person shall after the commencement of this act be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."
By s. 2, in cases of imprisonment the court may award hard labor, and also solitary confinement not exceeding one month at any one time, and three months in any one year.
(1) If several be indicted for a riot, and there is proof against one only, all must be acquitted. Penn. o. Hurton & al., Addis. 334. See State o. Allison, 3 Yerger, 428.
(a) Eng. Com. L. Rep. xiv. 166.
The second section of the riot act gives the form of the proclamation, concluding with the words, “ God save the King.” Where, in the reading of the proclamation these words were omitted, it was held that the persons continuing together, did not incur the penalties of the statute. Child's case, 4 C. and P. 442 (a).
Upon an indictment under the first section of the 1 Geo. 1, stat. 2, c. 5, the prosecutor must prove, 1, that the prisoners with others, to the number of twelve, were unlawfully, riotously, and tumultuously assembled together ; 2, that proclamation was made in the form given by the second section of the statute; 3, that the defendants, with others, to the number of twelve, remained or continued unlawfully, riotously, and tumultuously together, for one hour or more after the proclamation ; lastly, it must be proved that the prosecution has been commenced within twelve months after the offence committed. i Geo. 1, st. 2, c. 5, s. 8.
The second or subsequent reading of the act does not do away with the effect of the first reading, and the hour is to be computed from the time of the first reading. Per Patteson, J., Woolcock's case, 5 C. and P. 517 (6).
If there be such an assembly that there would have been a riot if the [ *822 ] parties had carried their purpose into effect, the case is within *the act, and whether there was a cessation or not, is a question for the jury. Ibid.
An indictment under the riot act for the remaining assembled one hour after proclamation made, need not charge the original riot to have been in terrorem populi ; it is sufficient if it pursue the words of the act. Per Patteson, J., James's case, 5 C. and P. 153 (c).
Proof of demolishing buildings, &c.] The offence of demolishing buildings by rioters (formerly provided against by the statutes 1 Geo. 1, st. 2, c. 5, 9 Geo. 3, c. 29, 52 Geo. 3, c. 130, and 56 Geo. 3, c. 125, repealed) is now forbidden by the 7 & 8 Geo. 4, c. 30, s. 8, which enacts, “ that if any persons, riotously and tumultuously assembled together to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy, any church or chapel, or any chapel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded, or any house, stable, coach-house, out-house, warehouse, office, shop, mill, mall-house, hop-oast, barn, or granary, or any building or erection used in carrying on any trade or manufacture, or any branch thereof, or any machinery, whether fixed or movable, prepared for or employed in any manufacture, or in any branch thereof, or any steam-engine or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine, every such oifender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon."
This sentence may be recorded under the 4 Geo. 4, ante, p. 224.
Although the prisoners are charged only with a beginning to demolish, pull down, &c., yet it must appear that such a beginning was with intent to demolish the whole. The beginning to pull down, said Park, J., in a
(a) Eng. Com. L. Rep. xix. 465.
Id, xxiv. 134. (c) Id. 251.
case where the prisoners were so charged, nieans not simply a demolition of a part, but of a part with intent to demolish the whole. If the prisoners meant to stop where they did, (i. e. breaking windows and doors) and do no more, they are not guilty ; but if they intended, when they broke the windows, &c. to go farther, and destroy the house, they are guilty of a capital offence. If they had the full means of going further, and were not interrupted, but left off of their own accord, it is evidence that they meant the work of demolition to stop where it did. It was proved that the parties began by breaking the windows, and having asterwards entered the house, set fire to the furniture; but no part of the house was burnt. Park, J., said to the jury, “If you think the prisoners originally came, without intent to demolish, and that the setting fire to the premises was an after thought, but with that intent, then, you mụst acquit, because no part of the house having been burnt, there was no beginning to destroy. If they came originally without such intent, but afterwards set fire to the house, the *offence is arson. If you have doubts whether they [*323] originally came with an intent to demolish, you may use the setting fire to the furniture under such circumstances, and in such manner as that the necessary consequence, if not for timely interference, would have been the burning of the house, as evidence to show that they had such intent, although they began to demolish in another manner.”
Ashton's case, 1 Lewin, C. C. 296.
The same rule was laid down in the two following cases:—The prisoners about midnight cause to the house of the prosecutor, and having in a riotous manner burst open the door, broke some of the furniture, and all the windows, and did other damage, after which they went away, though there was nothing to prevent their committing further injury. Littledale, J., told the jury that this was not a "beginning to demolish,” unless they should be satisfied that the ultimate object of the rioters was to demolish the house; and that if they had carried their intentions into full effect, they would in fact have demolished it. Thatsuch was not the case here, for that they had gone away, having manifestly completed their purpose, and done all the injury they meant to do. Thomas's case, 4 C. and P. 237 (a); and see 6 Č. and P. 333 (b).
Where an election mob pursued a person who took refuge in a house, upon which they attacked the house, shouting," pull it down,” and broke the door and windows, and destroyed much of the furniture, but being unable to find the person they were in search of, went away ; Tindul, C. J., ruled, that the case was not within the statute, the object of the rioters not being to destroy the house, but to secure the person they were in search of. Price's case, 5 C. and P. 510 (c).
But the case may fall within the statute, though the intent to demolish may be accompanied with another intent, which may have influenced the conduct of the rioters. Thus, where a party of coal-whippers having a feeling of ill-will towards a coal-lumper, who paid less than the usual wages, collected a inob, and went to the house where he kept his paytable, exclaiming, that they would marder him, and began to throw stones, &c., and broke the windows and partitions, and part of a wall, and after his escape, continued to throw stones, &c. till stopped by the police; Gurney, B., ruled that the parties might be convicted under the 7 & 8
(a) Eng. Com. L. Rep, xix. 363. (b) Id. xxv. 425. (c) ld, xxiv. 432.