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commit subornation of perjury by procuring John B. Graves to commit willful and corrupt perjury, in the oath which he is before alleged in said indictment to have taken. In order to convict the plaintiff in error of subornation of per. jury, it was essential for the Commonwealth to show that the person whom he is alleged to have suborned had committed pejury. But if it had been shown to the contrary that the person alleged to have been suborned had been indicted for the offense of the perjury alleged, and had been tried and acquitted, it would have entitled the plaintiff in error to an acquittal of the offense of subor. nation for which he was indicted. It appears from the plaintiff's third bill of exceptions that after the trial of his case, but while the matter was yet in the breast of the court, he moved the court for a new trial, upon the ground that John B. Graves, the person whom it was charged he had suborned, had been tried upon the charge of perjury after the verdict had been rendered against him, the said plaintiff before the same court, and a verdict of not guilty had been returned, and the said Graves had been discharged; which motion for a new trial the court overruled. If this evidence had been before the jury upon the trial of the plaintiff in error, they would have been bound to have found a verdict in his favor. And inasmuch as in the nature of things the evidence of Graves' acquittal of the perjury charged could not have been given in evidence in that trial, because his trial and acquittal did not occur until afterwards, it was error in the court to overrule his motion for a new trial. We are of opinion, that the court ought to have set aside the verdict and awarded the prisoner a new trial. The court is of opinion, therefore, that for this cause (the overruling the motion of the plaintiff in error for a new trial) the judgment must be reversed, the verdict of the jury set aside, and a new trial awarded the plaintiff in error, and the cause is remanded for further proceedings therein in conformity with this opinion.”

§ 143. Subornation of Perjury - Endeavoring to Induce Witness to Swear Falsely in Suit to be Afterwards Brought, Not. — This was held in State v. Joaquin,2 PETERS, J., saying: “ This indictment alleges that the respondent endeavored to procure another to commit perjury. The substance of the matter alleged is, that the respondent intended to commence a suit, or institute a proceeding, in which the perjury was to be committed. We think the case is not reached by the statute on which the indictment is founded. The true rendering of the statute is, that a person shall be liable who endeavors to procure a person to swear falsely 'in a proceeding before any court, tribunal or officer created by law, or in relation to which an oath or affirmation is by law authorized. The objection is, that the suit or proceeding was not pending. It might never be commenced. Therefore it was an instigation to commit an offense upon a condition or contingency that might never happen. This was rather an ideal than a real offense, morally reprehensible, no doubt, but no such as the law sees fit to notice. The county attorney ingeniously argues that, if the proceeding is pending it may never come on for trial, and that there is no more condition in the way of a suit being brought than there is of its being tried after it is pending in court. But there is a presumption that a case in court is to be tried or disposed of, a presumption of continuance, order or regularity in the course of judicial proceedings, while there is not a presump

1 2 Bish. on Cr. Pr., sec. 879.

2 63 Me. 218.

tion that a person will consummate a crime that he may have had in contemplation. No doubt, a person could be guilty, under the statute, of endeavoring to incite another to commit perjury where no proceeding is pending, but where the act done would itself constitute a proceeding. A man might be induced to go before a grand jury and falsely swear to a complaint. A pregnant woman might be instigated by another to go before a magistrate and falsely swear to proceedings against a man as the father of her bastard child, expected to be born. In such cases the acts of the foresworn parties would have the effect, per se, to institute proceedings. Mr. Chitty, in his Pleadings, has furnished precedents for such indictments. But here the instigation was not to commence a proceeding by false swearing, but to swear falsely in some proceeding, provided at some time before some court in some form should one be commenced.

Exceptions sustained."

CHAPTER IV.

CRIMES AGAINST THE PUBLIC PEACE.

RIOT – UNLAWFUL ASSEMBLY.

STATE V. STALCUP.

[1 Ired. (L.) 30; 35 Am. Dec. 732.]

In the Supreme Court of North Carolina, June, 1840.

1. An Unlawful Assembly is a necessary ingredient of a riot. 2. Assembly Summoned by Constable - Boisterous Acts – An assembly summoned

by a constable to execute lawful process is not an unlawful assembly and the persons assembling are not indictable for riot, though they use oppressive and abusive means in its execution.

The constable of Macon County had been directed by a State Warrant to arrest the prosecutor Morrison for a forcible trespass. To aid himself in executing the process, he summoned the other defendants and they arrested and tied the prosecutor. The defendants were indicted on two counts: The first, charging them with riot; the other, with assault and battery. Evidence was offered on the trial showing that the defendants unnecessarily oppressed Morrison; but defendants insisted that nevertheless they could not be convicted on the first count, and moved the court so to instruct the jury. This instruction the court refused and after giving the jury the legal definition of a riot, instructed them that if they believed the defendants were guilty of oppression or abuse they might convict them on both counts. The jury found the defendants guilty upon both counts; the defendants moved for a new trial, which being denied they appealed.

John R. J. Daniel, Attorney-General, for the State.
No counsel appeared for the defendants in this court.

DANIEL, J. The case states that the defendants assembled in consequence of the summons of the officer to aid him in the execution of a State's warrant, issued against the prosecutor for a forcible trespass. Such an assembly can not be considered an unlawful assembly. But we thick an unlawful assembly is a constituent and a necessary part of the offense of a riot. It must precede the unlawful act which consummates

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in regard to his alleged misconduct, and invited him to attend. The minister did not at. tend, and the officials resolved to suspend him until his conduct could be passed upon by superior authority; and they delegated the accused, who was a steward of the church, to carry out the resolution. Accused did so by approaching the stand after the congregation had assembled, but before services had commenced, and notifying the minister of the action of the officials, and that he would have to quit preaching until the “elder" had passed upon his conduct. Held, that this does not show a willful intent to disturb the congregation.

APPEAL from the County Court of Gonzales. Tried below before the Hon. J. S. Conway, county judge.

The opinion states the case.

Ponton & Fry, for the appellant. Thomas Ball, Assistant AttorneyGeneral, for the State.

WINKLER, J. The appellant and two others were charged by information, under the statute, with willfully disturbing a congregation assembled for religious worship. The charging portion of the information is as follows, after stating time and venue, " then and there unlawfully and willfully disturb a congregation assembled for religious worship at Wesley Chapel Church, in said county, by loud and vociferous talking, and by the use of threats and other noises caused said congregation to be disturbed while said congregation were conducting themselves in a lawful manner.”

As to two of the defendants the prosecution was dismissed, and this appellant was put on trial alone. He was found guilty, and a fine of $25 imposed; and, after a motion for new trial overruled, this appeal is prosecuted.

The trial below divulged about this state of case: The congregation alleged to have been disturbed was a church or society of colored people belonging to the Methodist Church One Cyrus Shakes was the minister. The appellant was one of the stewards of the church. Of the two others jointly charged, but as to whom the prosecution had been dismissed, one was a steward and the other the class-leader. The church had but two stewards. Prior to the alleged disturbance, rumors had been circulated imputing to the minister improper intimacy with a female member of the congregation, a married woman. It was proved on the trial that, on the night previous to the alleged disturbance, the classleader mentioned the subject to the officials of the church, and a meeting of the officers of the church was called, and the minister was notified by the class-leader of the time and place of the meeting, for the purpose of investigating the minister's conduct.

In this connection, we make the following extract from the testimony of the class-leader, who was put on the stand by the accused: “ • We held our meeting, but Shanks did not attend. Henry Christmas, a Methodist preacher, Louis Richardson, who is a steward, and another preacher, and myself were present. We came to the conclusion that it

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was our duty to suspend Parson Shanks from preaching until the elder could be heard from. The preacher said this was the right way, and we appointed Louis Richardson to carry out this resolution. We thought it was wrong for the officers to allow a man to preach when such charges were circulated against him. When we went to the church that night, Henry Christmas, Louis Richardson, and myself, went in together; and Louis went up in front of the stand, and said, “ Brother Shanks, you will have to quit preaching until charges against you are investigated by the elder.' Shanks took up his stick and hat, and said, 'I am one man, but I am not afraid of all three of you.' Louis said, 'I can read the discipline, and I know my duty as steward, and you will have to come down until we hear from the elder.' Louis spoke in a mild man

We all thought we were doing our duty. When we went in Shanks was not preaching, but was talking about what the committee had him up about the night before.”

The statement of this witness is borne out, and not contradicted by any other testimony in the case. It was admitted without objection, and the above extract is set out for the reason that, in our opinion, it shows the animus which actuated the appellant on the occasion of the alleged disturbance, and presents the question whether, under this statement of facts, the appellant was guilty of a violation of law or not.

The statute provides that “ any person who by loud or vociferous talking, or swearing, or by any other noise, willfully disturbs any congregation assembled for religious worship,” etc., “ shall be deemed guilty of a misdemeanor," etc.

The offense created by the statute consists in willfully disturbing the character of congregation mentioned, for the purpose mentioned, and in the manner mentioned in the act. So that, to constitute the offense, there must be a congregation assembled for religious worship, and that congregation, so assembled, must be disturbed, that is, agitated, roused from a state of repose, molested, interrupted, hindered, perplexed, disquieted, or turned aside or diverted from the object for which they are assembled; and the act which causes the disturbance must be willfully done, that is, willingly, designedly, purposely, obstinately, or stubbornly done. These elements combining, the offense would be complete. Does the proof show that this appellant, by loud and vociferous talking, and other noises, disturbed the congregation 18sembled for religious worship, and conducting themselves in a lawful manner, and did he so cause such disturbance willfully?

Mr. Bishop, in treating of the application and interpretation of the law of statutory offenses, condenses the subject into this statement: “Whenever the thing done comes not within the mischief which evidently the statute was intended to suppress, though it comes within its

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