crime, the finding of the jury is silent and wholly lacking in that certainty and precision which are necessary to enable the court to see certainly, that an indictable offense has been committed.

In a popular government like ours, the laws allow great latitude to public demonstrations, whether political, social or moral, and it requires but little reflection to foresee, that if such acts as are here found by the jury, are to be construed to be indictable, that the doctrine of riots and common nuisances would be extended far beyond the limits heretofore circumscribing them, and would put an end to all public celebrations, however innocent or commendable the purpose. No error.

§ 152. Constituents of the Offense. Under the Missouri statute,1 to convict of riot proof must be given of an "unlawful act," i.e., the act done must not only be done in a riotous, routous and unlawful manner, with force and violence, but must be an unlawful act 2

§ 153.

§ 154.

Threats.-Threats will not constitute a riot.3

- Innocent Intent.

An indictment for demolishing a house will not lie where the persons committing the outrage did so, not with the intent to do so, but in the process of seizing a person who had taken refuge therein.

§ 155.

Subsequent Participation.—If a person at a distance while a riot is in progress, come up immediately after it is over and assaults one of the parties, he (the attacker) is not guilty of riot."

§ 156. Disturbing the Peace.

More Than One Person Must be Disturbed. In order to constitute the offense of disturbing the peace, the peace of more than one individual must be disturbed.6

§ 157. Disturbing one Family. - An indictment does not lie against a person for being in the habit of going to the house of another and grossly abusing his family thereby rendering their lives uncomfortable."

§ 158. Breach of the Peace - Tolling Church Bell for Living Person. — In State v. Riggs,s one P. complained that the defendants to harass and annoy P. and his family set forth the rumor that P. was dead, and was to be buried the next day and tolled the church bell- - they knowing that P. was not dead. It was held that this did not amount to a disturbance of the peace within the statute. "This," said REDFIELD, J., " is certainly a case of the first impression. It seems to us very clear that the acts charged in the complaint do not constitute an offense against the statute defining the ordinary modes of committing a breach of public peace 'by tumultuous and offensive carriage, threatening, quarrelling, challenging, assaulting, beating or striking.' The offense there defined is that of assault and battery, together with other kindred acts, of the

1 R. C. Mo., art. 7, sec. 6.

And,

2 Smith v. State, 14 Mo. 147 (1851). as to what will not constitute a riot, see State v. Lanier, 71 N. C. 288 (1874); R. v. Kelly, 6 U. C. C. P. 372 (1856).

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

4 R. v. Price, 5 C. & P. 511 (1833).

5 Sloan v. State, 9 Ired. 565 (1857).

6 State v. Schlottman, 52 Mo. 164 (1873). And as to disturbing the peace under the Missouri statute, see State v. Lunn, 49 Mo. 90 (1871).

Com. v. Edwards, 1 Ashm. 46 (1823). 8 22 Vt. 321 (1850).

nature named in the statute, and calculated to put one in fear of bodily harm, and disturbing that quiet and repose, which constitute essentially the comfort and rest of social life- -as was held in State v. Benedict.1

-

"But the misconduct here charged, testing its character by the rules of the common law, and we have no other guide in cases wholly novel, is either a libel, or a species of profanity, or perhaps partaking somewhat of both qualities. So far as the offense against the individual is concerned, it seems to be more a libel than any thing else, by attempting to bring him into contempt and ridicule and public scandal. The means resorted to, although novel, are not perhaps very different from pictures, effigies and pantomime, and other scenic and dramatic exhibitions, by way of caricature, which have been regarded as modes in which one might be libeled. But to constitute an offense of this character, it is necessary that the complaint should contain something more than the mere acts. It should also contain averments that the defendant did the acts for the purpose and with intent to bring the person aggrieved into public scandal, and that such was the nature and effect of such actions and conduct as described in the complaint. The complaint is wholly deficient in these particulars, and whether it is possible to so frame a declaration or bill, as to make such acts amount to any ground of action, or criminal proceeding, I would certainly not be prepared to say. The acts complained of are to my mind more like libel, or slander, perhaps, than a breach of the peace, by putting in fear of bodily harm.

"Viewed as an unseemly jest, and an attempt to turn a very serious matter into heartless levity and unfeeling merriment, it would no doubt, by some be regarded as a shocking profanity. For however the hour of one's death, and the passing knell, and the solemn order of a funeral, may seem to us in health and spirits, such matters certainly are fraught with the gravest, the most awful importance to all sober men. And in a Christian community any attempt to make one a mark for ridicule through such instrumentalities would ordinarily be regarded as an unwarrantable proceeding, a species of profanity. But the statute having made one kind of profanity punishable in a summary way, and defined blasphemy as a substantive offense, we are not aware that it has ever been supposed, that other kinds of profanity, not defined in any statute, are punishable criminally.

"Judgment of the County Court reversed, and judgment arrested."

§ 159. Merely Provoking Words Not. - In State v. Taylor,2 the defendant was charged that being armed with concealed weapons, he did, for the purpose of provoking B. to commit a breach of the peace, in the presence of citizens say, "B is a liar, and induces others (naming them) to lie for him." "The only question," said the Supreme Court, "is, was this indictment properly quashed. We think it was. Mere quarrelsome words are not a punishable offense." 3 Mere words, such as calling a man a knave or a liar, are not necessarily criminal."

§ 161. Disturbance Must be Willful-Careless or Reckless Act-Slamming Doors. — In Harrison v. State,1 the defendant had slammed the doors of the church several times, and the court charged that if he had disturbed the congregation either "willfully or recklessly "it was within the statute. On appeal this was held error. "The word willful," said the court, "when employed in a penal enactment, has not always the same meaning. In this statute it is used as the synonym of intentional or designed — pursuant to intention or design; without lawful excuse.2 The word reckless means 'heedless, careless rash or indifferent to consequences.' Now, one may be heedless, rash, or indifferent to results, without contemplating or intending those consequences. As a general rule, there is a wide difference between intentional acts, and those results which are the consequence of carelessness. While the question of the intention with which the act of disturbance was done, was one of inference or presumption from all the circumstances to be drawn by the jury, we do not think the statute was violated, if the disturbance was the consequence of an act which was simply reckless or careless. To be guilty, the defendant must have gone further, and intentionally created the noise. If he intentionally did an act, or employed language, so near the place where he knew a worshipping assembly was congregated, as that he must have known that such worshipping assembly would be disturbed by such act or language, then such act would be, in the eyes of the law, a willful disturbance, unless some lawful excuse existed therefor. A worshipper in a church, discovering a building on fire, would doubtless be justified in giving the alarm, although in doing so he might disturb the assembly. Whether the noise disturb the assembly, and, if so, whether the conduct of the defendant was such as to show that he intended to make that noise, were questions for the jury, under appropriate instructions from the court."3

§ 162. · Disturbance Essential-Merely Leaving Church not.- A hearer going out of church during service is not a disturber, and a rule of the church can not make him so, for such a rule is "an infringement upon natural liberty and private right not to be tolerated." 4

§ 163. Disturbance must Take Place while Congregation is Assembled. The disturbance must take place while the congregation is assembled for worship.5

Thus, where the acts took place at a camp-meeting, at night after the congregation had departed and the people had retired to their tents, it was held not within the statute.

"The people, or some considerable number of them, must be collected at or about the time when worship is about to be commenced, and in the place where it is to be had, in order to make a disturbance to them indictable."

§ 164.

Congregation Dismissed. After the minister dismisses the congregation, it ceases to be a "congregation met for religious worship,” and a disturbance then in the yard is not within the statute.8

1 37 Ala. 154 (1861).

21 Bish. Cr. L., sec. 262; State บ. Adrian, 10 Ala. 928. Also, McManus v. State, 36 Ala. 282.

3 See, Ogletree v. State, 28 Ala. 693.

4 People v. Brown, 1 Wheeler, 124 (1822). And as to the meaning of "interrupt" in the

statute, see Brown v. State, 46 Ala. 175 (1871).

State v. Edwards, 32 Mo. 548 (1862);. Richardson v. State, 5 Tex. (App.) 470 (1873). • Id.

State v. Bryson, 82 N. C. 578 (1880). 8 State v. Jones, 53 Mo. 486 (1873).

§ 165. "Assembly for Religious Worship"-Sunday-school Celebration and Christmas Tree. A meeting held in a school house for the enjoyment of a Christmas Festival of Sunday-school teachers and scholars, where prizes are distributed from a Christmas tree, is not an "assemblage for religious worship."1

$166.

License from Municipal Corporation. Where a camp meeting is located within a village limit, it is subject to the ordinances of the village, and a person can not be convicted of doing what he is licensed to do by the village-as, for instance, selling refreshments in the camp meeting grounds.

§ 167. Carrying Concealed Weapons-Weapon must be Concealed - It is Essential that the Weapon should be Concealed. —A person who carries a weapon openly in the view of all is not within the statute.3

§ 168. Carrying Concealed Weapons-Weapon must be Concealed – Open Wearing of Arms not Punishable. - In State v. Rotten, it appeared that the prisoner went into a store off his own premises with two pistols buckled around him without holders, and naked on a belt outside his clothing. It was held that he was not guilty. The court said: "The defendant was indicted under the act of 1879,5 which makes it an indictable offense for a person, except on his own premises, 'to carry concealed about his person any pistol, bowie knife, dirk, dagger, slung shot, loaded cane, brass, iron, or metallic knuckles, or other deadly weapons of like kind,' and the fourth section of said act provides that, 'any person being off his own premises, and having upon his person any deadly weapon described in section one, such possession shall be prima facie evidence of the concealment thereof.'

"The evident intention of the Legislature in passing this statute was to prohibit the pernicious practice of going secretly armed, and thereby prevent the dangerous use of deadly weapons in sudden personal conflicts, in which oftentimes an undue advantage is taken of the unwary. We see nothing in the statute that prohibts the carrying of the proscribed weapons openly about the person.

"But it is contended on the part of the State that the fourth section of the act makes the possession of such weapon prima facie evidence of its concealment, however carried, whether open to view or concealed. But what is prima facie evidence of a fact? It is simply such evidence in judgment of law as is sufficient to establish the fact, and if not rebutted remains sufficient for the purpose. The effect is to shift the burden of proof from the State to the defendant, that is all.

"Admitting the full force of the position assumed by the State, it must be that if in the development of the evidence of the case it should be shown that the weapon was carried openly and in view to every one, the legal presumption would be rebutted. In the case of Daggett v. Railroad Company, where the de. fendant was indicted for killing stock under section 11, which makes

1 Layne v. State, 4 Lea, 199 (1879). 2 Ex parte McNair, 13 Neb. 195 (1882). 3 Stockdale v. State, 32 Ga. 225 (1861). As to the construction of the word "concealed," see State v. Johnson, 16 S. C. 190 (1881); Jones v. State, 51 Ala. 16 (1874). And as to insufficient evidence to convict of the

6

charge, see Smith v. State 10 Tex. (App.) 420 (1881).

4 86 N. C. 701 (1882).

5 ch. 127.

6 81 N. C. 459.

7 ch. 16, of Bat. Rev.

the killing or injuring of stock by cars running on a railroad, if prosecuted within six months, prima facie evidence of negligence, the court held that the effect of the act was the shifting of the burden of proof from the plaintiff to the defendant, and requiring the latter to show the circumstances, and repel the legal presumption. But when the facts are fully disclosed, and there is no controversy as to them, the court must decide whether they make out a case of negligence, and if they fail to do this, the defendant is not to be held liable.'

"When, then, in this case the jury in their special verdict find that the pistol was carried by the defendant buckled around him, without scabbard and naked in a belt, on the outside of his clothing, the fact found by the jury repels the prima facie evidence of concealment, and it was equivalent to finding the fact that there was no concealment, and the court upon such a finding could not do otherwise than to hold that the State had failed to establish its charge against the defendant.

"To constitute the offense, there must be a concealment. When the proof shows there was no concealment, there is no violation of the statute. It would be a contradiction in terms to hold that a person conceals that which he carries about him openly and to the view of everybody. The Legislature, in our opinion, never intended to make it an indictable offense to carry such arms as are described in the first section of the act, openly and in view.

"The construction here given to the statute might seem to ascribe to the Legislature the intention of giving sanction to the open wearing of arms. The answer to that is, simply, that the Legislature has not forbidden it, otherwise they would not have used the term, "concealed."

"If the privilege of so wearing arms should be abused, the public is protected by the common law. The offense of riding or going armed with unusual and dangerous weapons to the terror of the people, is an offense at common law and is indictable in this State. A man may carry a gun for any lawful purpose of business or amusement, but he can not go about with that or any other dangerous weapon to terrify and alarm and in such manner as naturally will terrify and alarm a peaceful people. It is the wicked purpose, and the mischievous result, which essentially constitute the crime.' 1

"But the defendant in our case was indicted, not at common law, but for a violation of the statute, and for the reasons we are of the opinion there was no error in the judgment of the Superior Court.

"Let this be certified.

"No error.

Afirmed."

§ 168a. Carrying Concealed Weapons What is Carrying? — In Brooks v. State, WILSON, J., delivered the following opinion: Defendant was convicted of the offense of unlawfully going into a social gathering, having and carrying about his person a pistol; and his punishment was assessed at a fine of fifty dollars.

It was proved by the State's testimony that, on the occasion of a social gathering at the house of one Crisp, the defendant took from his pocket a pistol, and after holding it in his hand about five minutes, returned it to his pocket. This occurred inside the house, and at a time when the house was full of people. At the time when the defendant was seen with the pistol, he was standing

1 State v. Huntly, 3 Ind. 418.

2 15 Tex. (App.) 88 (1883).