ingly obstruct the authority aforesaid, that is to say, the said A. B. did then and there unlawfully, forcibly, and knowingly assault, beat, threaten, ill-treat, hinder, and obstruct the said M. N., justice of the peace as aforesaid, while he the said M. N., as such justice of the peace, was then and there attempting and endeavoring to make proclamation as aforesaid.

(854) Riot, and refusing to disperse on proclamation being made, under Ohio statute.(r)

(Follow No. 852 to the †, and then proceed as follows): and then and there the said A. B., and divers of the said other persons, to the deponent unknown, to the number of three and more, did not disperse and depart, as they were then and there required by the said proclamation and command of the said jus tice of the peace, so made as aforesaid, but the said A. B., and the said divers of the said other persons, to the deponent aforesaid unknown, to the number of three and more, then and there unlawfully, riotously, and routously continued and remained together after the said proclamation then and there made by the said justice of the peace, as aforesaid, for a long space of time, to wit, for the space of minutes.

(855) Riot and pulling down a dwelling-house in the possession of prosecutor.(s)

That W. S., J. S., H. S., and D. L., late of the county of Pike aforesaid, together with divers other persons, to the number of ten or more, to the jurors aforesaid as yet unknown, being rioters, routers, and disturbers of the peace of the commonwealth, on, etc., with force and arms, that is to say, with sticks, staves, clubs, and other hurtful weapons, at, etc., did unlawfully, riotously, routously, and tumultuously assemble and meet together, to the great terror of the peaceable people and inhabitants of this commonwealth, and to disturb the peace of the said commonwealth, and being so assembled and met together, one building and dwelling-house in the possession of J. W., of

(r) Warren's C. L. 83.

(s) Shouse v. Com., 5 Barr, 83, where it was held, that under an indictment charging four with riot and riotous assault and battery, one may be convicted of an assault and battery, and the others acquitted generally. Wh. Cr. Pl. & Pr. §§ 245, 312.

the county of Pike aforesaid, did then and there riotously, routously, and unlawfully pull down, break down, destroy, and other wrongs to the said J. W. did then and there, to the great damage of the said J. W., contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(Add second count, giving riot and assault on prosecutor.)

(856) Riot and false imprisonment.(t)

That G. S., et al., on, etc., at, etc., with force and arms, etc., themselves as rioters and disturbers of the peace of our lord the now king, riotously, routously, and tumultuously, with an intent the peace of our said lord the now king to disturb and interrupt, did assemble and gather together, and so then and there being assembled and gathered together, then and there, with force and arms, etc., riotously, routously, and tumultuously in and upon a certain H. B., in the peace of God and our said lord the now king then and there being, an assault did make, and him the said H. B. then and there, without any lawful warrant or authority, did imprison and restrain of his liberty for the space of two hours, and then and there did compel and oblige him the said H. to pay the sum of two shillings current money of this province, and to give and deliver a certain red cow, being the proper cow of him the said H. B., unto the said G. S. to obtain his discharge and regain his liberty from the imprisonment aforesaid, to the evil example, etc., in contempt, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(857) Disturbing the peace, etc., on land occupied by the United States for an arsenal.

That C. S., et al., all of Springfield, in said district of Massachusetts, on the day of June, etc., at said Springfield, on land belonging to the said United States, to wit, on land occupied for an army or arsenal, and for purposes connected therewith, out of the jurisdiction of any particular state of the said United States and within the jurisdiction of the said United States, together with divers other persons whose names are to the jurors aforesaid as yet unknown, to the number of four,

(t) This indictment was framed in 1759 by Mr. Benjamin Chew, the then attorney-general of Pennsylvania, and stood the test of a conviction.

being evil disposed and disorderly persons, with force and arms, did then and there unlawfully, riotously, and routously assemble and gather themselves together to disturb the peace of the said United States, and being so assembled did then and there unlawfully, riotously, and routously, with force and arms, cut down and destroy and carry away a certain fence, the property of the said United States, and a certain small wooden building, the property of the said United States, and other wrongs then and there did, to the terror of the people there residing, being, and passing; in evil example, etc., and against, etc., and contrary, etc. (Conclude as in book 1, chapter 3.)

(For corrupt interference with electors, see infra, 1016.)

(858) Disturbance of elections in Massachusetts.(u)

on

That the inhabitants of W., on, etc., at, etc., aforesaid, were duly assembled in town meeting, for the choice of town officers for the political year then next ensuing; that a moderator was duly chosen, who called on the electors present to give in their votes for a selectman for the said political year then next ensuing; and that T. F. H., of in the county of the day and year before mentioned, when the said moderator was presiding at the meeting, and was receiving the votes for a selectman, with force and arms, intending as much as in him lay to prevent the choice of said selectman according to the will of the said electors, and to interrupt the freedom of election, unlawfully and disorderly did openly declare that the old selectman should not be chosen, and attempted repeatedly to take from the box, which contained the votes of the electors, the votes of the electors (and so the jurors say, that the said T. F. H., on the day and year aforesaid, and at in the county

aforesaid, in the public town meeting aforesaid, did behave himself disorderly and indecently, to the disturbance of the peaceable and quiet citizens then and there assembled for the purpose aforesaid, in violation of the rights of private suffrage); against, etc., and contrary, etc. (Conclude as in book 1, chapter 3.)

(u) That part in brackets of this count was held in Com. v. Hoxey (16 Mass. 385) to comprehend an offence at common law, though the averments taken altogether were pronounced insufficient to sustain a sentence under the act of 1785, ch. 75, § 6.

(859) Another form for same.(v)

That heretofore, to wit, on the first day of June, in the year of our Lord at B. in the county of S., a town meeting of the inhabitants of said B., for the election of governor and lieutenant-governor of said commonwealth, and for senators for the district of S., was then and there duly holden. And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D., late of B., in the county of S., laborer, afterwards, on the day and year aforesaid, with force and arms, at B. aforesaid, iu the county aforesaid, in the town meeting aforesaid, did behave himself disorderly, by then and there (here set out the facts according to the evidence), against the peace, etc., and contrary to the form of the statute in such case made and provided.

(866) Interrupting a judge of the election in Pennsylvania. That B. G., etc., on, etc., at, etc., designing and intending the due execution of the laws of this commonwealth to obstruct and prevent, with force and arms, etc., did threaten and use violence to the person of one J. B., he the said J. B. then and there being one of the judges of the election in the city of Philadel phia, at a general election held in and for the said city, on, etc., duly chosen, appointed, and sworn by virtue of an act of the general assembly of this commonwealth, entitled An act, etc., and in the due execution of his said office then and there also being, and then and there with threats and opprobrious language did interrupt the said J. B. in the execution of his office, and then and there did say to the said J. B., he the said J. B. still being in the due execution of his said office," you (the said J. B. meaning) damned infernal rascal, I will see you for this another time," thereby meaning and intending to prevent and debar the said J. B. from proceeding in the execution of his said office, to the evil example, etc., and contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.).

(v) Tr. & H. Prec. 178.

410

(861) Disturbing a religious meeting, under the Virginia statute.(w) That W. D., late of the county of Lewis, yeoman, on the sixth day of October, etc., with force and arms, at, etc., during religious worship, did on purpose, maliciously and contemptuously, disquiet and disturb a certain congregation of Methodists, being then and there lawfully assembled for the purpose of religious worship,(x) in contempt of public worship, to the evil example, etc., contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(862) Same under Rev. Sts. Mass. ch. 130, § 171.(y)

That C. D., late of B., in the county of S., laborer, on the first day of June, in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, did wilfully interrupt and disturb a certain assembly of people there met for the worship of God, within the place of such meeting, to wit, within the meeting-house of the First Parish in B. aforesaid, in the county aforesaid, and during the performance of divine service

(w) See Com. v. Daniels, 2 Va. Cases, 402, where the form in the text was upheld. "This indictment," say the court, "sets forth the place where, the time when, as well as the denomination of religious persons to whom the disturbance was offered. It also charges the defendant with the offence in the very words of the statute. But it is urged, that as the time at which it is offered may be proved to have been different from that alleged, the want of an averment as to the means by which the disturbance was effected renders the indictment too uncertain to be supported. We do not doubt that it is a correct mode of drawing an indictment to charge the means by which the disturbance was caused, where those means can be ascertained; but when we find that an indictment similar to this, founded on an English statute, bearing a great resemblance to ours, has been acted on in the court of king's bench, and a judgment thereon rendered against sundry persons for the penalty prescribed by that statute, we are of opinion that the question is sufficiently settled.

It may further be remarked, that there seems to be but little difference in point of certainty between the simple averment of a disturbance and disquieting in the words of the act, and the averment that the defendant did make divers great cries, noises, and disturbances, to disturb and disquiet, and did then and there disturb and disquiet,' etc., or this averment, that they did disquiet and disturb the congregation by then and there talking, laughing, cursing, and swearing in a loud voice,' both of which are to be found in approved precedents as copied by Chitty.

"On the whole matter, we are of opinion, that it should be certified, 'that it is not necessary, in an indictment for disturbing a religious congregation, to set out the means by which the disturbance or disquieting was offered."

For authorities on this topic see Wh. Cr. L. 8th ed. § 1556.

() A variance in this averment may be fatal. State v. Sherrill, 1 Jones N. C. 508.

(y) Tr. & H. Prec. 177.