with great care by the jury, who should not rely upon it unsupported, unless it produces in their mind the most positive conviction of its truth. It is just and proper in such cases for the jury to seek for corroborating facts and circumstances in material respects. But this is not absolutely essential, provided the testimony of such witness produces in the minds of the jury full and complete conviction of its truth.

You must be convinced beyond reasonable doubt that the defendants on trial have committed the offense or offenses charged, in order to convict them. Each and every fact necessary to constitute the offense must be so proved that is, beyond reasonable doubt. Until guilt is proven there is an abselute presumption of innocence. The law does not permit the defendants to testify, and this presumption of innocence stands in their favor, until by competent testimony it is overthrown and guilt established beyond reasonable doubt. It is the settled rule in criminal cases that a conviction can not be secured upon strong suspicon or probabilities of guilt, nor, as in civil cases, upon a mere preponderance of evidence, though the weight and character of the evidence are to be passed upon by you in determining whether the charge or charges are proven beyond reasonable doubt. By reasonable doubt

is meant an actual, substantial doubt that arises and rests in the mind as testimony is weighed and considered that results after the exercise of judgment and reason when fairly and candidly applied to an investigation of the evidence.

If the evidence convinces you beyond reasonable doubt that the defendants on trial are, or that either of them is, guilty as charged in the counts of this indictment, or either of them, then you should so find. If all the facts essential to constitute the offense or offenses charged are not established, and guilt is not proven beyond reasonable doubt, then the government can not rightfully ask a conviction, and it would be. your duty to acquit. The indictment charges that the three defendants, Goldberg, Jonas and Crosby, conspired together to commit the offense named. If you find that a conspiracy was formed by any two of the defendants named in the indictment, but that one only of the defendants on trial was a party to that conspiracy, and that the other was not, you should acquit the defendant so found not to be a party to it, and should convict the other if found guilty.

2 DEFENCES.

37

Verdict, not guilty.

CONSPIRACY — ACQUITTAL OF ONE ACQUITTAL OF ALL.

R. v. MANNING.

In the English High Court of Justice, Queen's Bench Division, 1884.

When two Persons are indicted for conspiracy in one indictment, both must be acquitted or both convicted.

An indictment was preferred at the Winchester Assizes against two defendants, Manning and Hannam, for conspiring to defraud the prosecutor of nine bullocks and twenty-six sheep.

The defendants were tried before Lord COLERIDGE, C. J., and a special jury. Lord COLERIDGE directed the jury that they might find one defendant guilty and acquit the other. They found Manning guilty; but were unable to agree as to Hannam and were discharged without returning a verdict with regard to him. His trial was therefore postponed.

A rule has since been obtained on behalf of Manning, calling on the prosecutor to show cause why the verdict should not be set aside on the ground of misdirection and a new trial had.

Charles Matthews and Hon. B. Coleridge, against the rule.

Charles, Q. C., and Warry, in support of the rule.

MATHEW, J. I am of opinion that there should be a new trial. I am satisfied from the argument of Mr. Charles that there is an imperative rule of law on the subject, and that the gist of a conspiracy is whether two men are guilty or not, and if the jury are not satisfied as to the guilt of one, then both must be acquitted. In R. v. Cooke,1 the court could not have delivered the judgment which they did unless they had been of opinion that this rule existed; and this was followed in Regina v. Thompson.2 The passages in Robinson v. Robinson and Lane,3 and in O'Connell v. Queen, are also in point.

STEPHEN, J. I have arrived at the same conclusion on the authority of O'Connell v. Queen. It is the decision of the House of Lords, and it clearly shows that it is a legal impossibility when several persons are indicted for a conspiracy, that some should be found guilty of one conspiracy and some of another. In Robinson v. Robinson and Lane, I think that the part of the judgment referring to the criminal law is a mere dictum. The body of the decision is founded on common sense and general principles would be in favor of the argument of Mr.

15 B. & C. 538.

2 16 Q. B. 834.

3 1 Sw. & Tr. 362; 7 W. R. Div. Dig. 10. 4 11 Cl. & F. 155.

Matthews. But I can not distinguish between the present case and that of O'Connell v. Queen. There must be a rule for a new trial.

The same

LORD COLERIDGE. I was influenced at the trial by the practice of the Divorce Court, as exampled in Robinson v. Robinson and Lane, and Stone v. 1 Stone and Appleton 1 and similar cases, which shows that what is evidence against one person is by no means necessarily evidence against the other. This is a motion for a new trial and had there been an appeal I might not have concurred with the court but left the point to be settled by a higher authority. As it is, I feel bound by the earlier decisions, which are stated shortly and without detail. If all the facts of those cases were before us, we might arrive at a different conclusion. From the time of 14 Henry VI.,2 to this hour it has been taken for granted by the judges that in cases of an indictment for conspiracy, when two persons are indicted and are tried together, either both must be convicted or both must be acquitted. Both plead together, both are tried together, and the verdict is one. thing must have been in the minds of the judges who decided R. v. Cooke, and Regina v. Thompson. I agree with my brother STEPHEN that neither of those cases is directly in point, for the details are not the same; the pleadings vary and the verdicts vary. In 1826 the Court of King's Bench seems to have assumed the rule which is contended for by the defendant. Although in Regina v. Thompson, Erle, J., differed from the other judges, he differed only on a point of pleading, viz. : that " persons unknown" could be construed to mean the two persons who, in the particular circumstances of that case, the jury were unable to agree about. Then the case of O'Connell v. Queen assumes the principle of law that in a conspiracy there are one or more persons, and the count is single and complete, and can not be separated into parts. I certainly misdirected the jury, and the rule must be absolute for a new trial. It is right that I should add that I have not forgotten the rule as to hearing applications for a new trial,3 but there is an exception of criminal proceedings; and this being a criminal proceeding, I have thought right to take part in the judgment.

Rule absolute for a new trial.

13 Sw. & Tr. 608.

2 Thody's Case, 14 Hen. VI., 25 B.

3 Ord. 39 R. 2.

NOTES.

§ 144. Affray-Place Must be Public. An affray must take place in a "public place." 1 A highway concealed from public view by timber or underbrush is not a "public place."

§ 145.

Place Must be Public-Private Place Does not become Public by Presence of Several Persons. -In Taylor v. State, A. and B. fought in a field surrounded by a forest and situated a mile from the highway. Only one other person was present. The trial court instructed the jury that a place private in itself might be made public by the presence of one person not engaged in the affray so as to make those who fought guilty of an affray. This was held on appeal erroneous. "Our opinion is," said the Supreme Court, "that a field surrounded by a forest, and one mile from any highway, or other public place, does not lose its private character by the casual presence of three persons."

§ 146. Prize Fight. The parties to a prize fight can not be indicted for riot or affray, when the fight takes place at a distance from a public highway, and is at an end when the constables arrive.1

§ 147.

Words Alone do not Constitute an Affray. - A party is not guilty of an affray who offers no resistance to an attack made upon him, although the attack is induced by insulting language used by him to his assailant.5

§ 148.

Nor Threats. —And threats alone will not constitute an affray.

§ 149. Riot Unlawful Assembly Requisite. —An unlawful assembly is a necessary requisite to a riot."

§ 15C. Assembly Summoned by Officers of the Law - Therefore, if an assembly summoned by a constable to arrest a person, use force or violence in doing so, the parties are not indictable for riot.8

-

§ 151. Riot - Unlawful Assembly Necessary Element of - Fourth of July Procession Obstructing Streets - Beating Drum and Blowing Fife.- In State v. Hughes, the defendant had been indicted and acquitted of riot and nuisance. On appeal BYNUM, J., in delivering the opinion of the Supreme Court stated the whole case as follows: The indictment contains three counts, to wit: The first is for a riot; the second for a common nuisance by the beating of drums and the blowing of fifes, and shouting in the town of Oxford; and the third count is for obstructing the streets of the town. The case is here, on appeal by the State from the judgment of the Supreme Court on a special verdict. The facts found by the jury are these: "That the defendant and others assembled in the town of Oxford to celebrate the emancipation proclamation, and with two drums and fifes, marched up and down the streets for two or three hours. Some were mounted, but being told to dismount they got down and

1 State v. Heflin, 8 Humph. 84. (1845).

2 State v. Weekly, 29 Ind. 206 (1867).

8 22 Ala. 15 (1853).

4 R. v. Hunt, 1 Cox., 177 (1845).

5 O'Neill v. State, 16 Ala. 65 (1849).

6 Skains v. State, 21 Ala. 218 (1852).

7 State v. Stalcup, 1 Ired. L. 30 (1840).

8 Id.

972 N. C.25 (1875).

hitched their horses. When told by the mayor to desist, they at first refused, but being notified by the constable to stop, the defendant Hughes, with the procession, beating the drum, went to the mayor's to make up a case to be tried before a magistrate, to test the mayor's right to forbid the procession. There were no arms in the crowd except sabers used by the officers. No violence in word or deed was offered to any citizen. Some of the citizens were disturbed by the noise of the drums, and some of the persons were drinking. The streets were obstructed from time to time during the interval, and one horse hitched in a lot broke loose."

1. First as to the count for a riot. This was not an unlawful assembly. But an unlawful assembly, is a constituent and necessary part of the offense of a riot, and must precede the unlawful acts which complete the offense. A riot is defined to be a tumultuous disturbance of the peace, by three or more persons assembling together of their own head, with intent mutually to assist each other against all who shall oppose them, and afterwards putting the design into execution in a terrific and violent manner.1 The indictment for riot always avers that the defendants unlawfully assembled, and this averment must be proved on the trial, as well as the subsequent riotous acts of the defendants. The defendants here can not be convicted of a riot, because the verdict finds facts from which the court can see that the assembly was not unlawful, and because no violence in word or act, was done or offered, and because the defendants, so far from defying the law, when their rights were questioned, proceeded to test them by the peaceable means of the courts.2

2. The next count is for beating the drum, blowing the fife and loud noises, creating a nuisance thereby. Beating the drum and blowing the fife, do not per se constitute a nuisance. The verdict finds that some of the citizens were disturbed by the noise of the drums. What number were disturbed or how they were disturbed by these martial sounds, is not stated, nor is it, on the other hand, found how many were not so affected. Doubtless the young and larger portion of that community, were not "disturbed" in the sense of injury or suffering, and from the nature of music in general, we must assume that the sound of fife and drum had an exceptional effect upon the few who were disturbed, as it did upon one horse that "broke loose." To render an act indictable as a nuisance, it is not sufficient that it should annoy particular persons only, but it must be so inconvenient and troublesome as to annoy the whole community. To beat a drum is not a nuisance, to blow a fife is not, neither is a procession through the streets, with these accompaniments, a crime. To constitute them such, the exceptional facts and circumstances which make acts, otherwise innocent, a crime, must be set forth particularly, so that the court can see that from their very nature, if proved, they are a nuisance to the whole community.

3

3. The last count is for obstructing the public streets of the town. If the procession was lawful, and the obstruction such only as is usually incident to such assemblies, then the obstruction was not an indictable offense. Were the streets so blocked up as to hinder or prevent travel or business? Were they obstructed longer than the occasion called for? Was it accidental or done on purpose, and with a criminal intent? Upon these ingredients of

11 Hawk. ch. 65, secs. 4,5; 83 Int. 176.

2 State v. Baldwin, 1 D. & B. 165 State v. Stalcup, 1 Ired. 30.

3 State v. Baldwin, 1 D. & B. 197.