coming. 100 extensive and valuable gifts, worth $1289.00. Tickets only $1.00 Tickets limited to 1400. Mr. A. B., jr., respectfully announces, that he will respond to the numerous invitations of his host of friends, and give one more Gift Concert at the Melodeon Hall, on Thursday evening, February 22d, 1855. The entertainment will be conducted by the best musical talent in the country; the gifts are all valuable and useful in every family, and will be found worthy of attention. Among them, to which particular attention is directed, is, 1 Magnificent Rosewood Piano Forte, $300.00. Exhibition of the Mammoth Cave of Kentucky, in perfect order, and cost originally $1,000, $330.00; 1 large patent English lever gold hunting watch, capped and jewelled, $125.00; 1 fine brilliant diamond gold ring, its intrinsic value $50.00; 1 large heavy gold watch, $40; 3 splendid new guitars, $75.00; 1 splendid table, $18.00; 1 extra large cherry dining table, $12.00; 1 beautiful fine chenille ring, $15.00; 1 beautiful new style parlor lamp, $12.00; 1 large looking-glass, $15.00. Want of room forbids specifying the other gifts. They consist of acceptable articles to the ladies, viz: fancy washstands, parlor ornaments, with large rose-wood frames, large gold lockets, gold specs, silver chains, etc. etc. A full description will be sent to each patron. The proprietor does not wish to humbug his patrons and friends by offering premiums seldom awarded to those who will sell the highest number of tickets, but will allow postmasters and responsible persons, who will act as agents, a full remuneration. To clubs, six tickets for $5.00, larger orders in proportion. Remember, tickets are limited to 1400. First come, first served. For tickets and other information, address, post paid, A. B., box 1299, Cincinnati, O." contrary, &c.

CHAPTER IV.

RIOT, AFFRAY, TUMULTUOUS CONDUCT, RESCUE, PRISON BREACH, &C.; RESISTANCE TO AND ASSAULTS ON OFFICERS OF JUSTICE. (g)

RIOT AND AFFRAY.

(849) General frame of indictment for riot.

(850) Affray at common law.

(851) Unlawful assembly and assault.

(852) Riot, and hauling away a wagon.

(853) Riot, in breaking the windows of a man's house.

(854) Riot, and disturbing a literary society, under Ohio stat.

(855) Riot, and pulling down a dwelling-house in the possession of prosecutor. (856) Riot, and false imprisonment.

(g) See Wh. C. L. generally as follows:

A. STATUTES.

RIOT; ROUT; UNLAWFUL ASSEMBLY, AND AFFRAY.

Massachusetts.

Duty of mayor, &c., to disperse riot, § 2456.

Persons not dispersing to be deemed rioters, § 2457.

Responsibility of peace officer, not doing his duty, § 2458.

Power to arrest, § 2459.

Armed force to obey orders, &c., § 2460.

Homicide caused by such orders justifiable, § 2461.
Pulling down building, &c.; punishment, § 2462.

Pennsylvania.

Riot, § 2463.

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

DISTURBANCE OF ELECTIONS.

(858) Disturbance of elections in Massachusetts.

(859) Another form for same.

(860) Interrupting a judge of the election in Pennsylvania.

[For corrupt interference with elections, see post, 1016.]

DISTURBING RELIGIOUS MEETING.

(861) Disturbing a religious meeting, under the Virginia statute.

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

(863) Disturbing a congregation worshipping in a church, at common law. (864) Disturbing same in a dwelling-house.

(865) Dressing in a woman's clothes, and disturbing a congregation at worship. GOING ARMED, &c.

(866) Going armed, &c., to the terror of the people, at common law.

(867) Carrying a dangerous weapon, under Indiana Rev. stat.

(868) Maliciously firing guns into the house of an aged woman, and killing a dog belonging to the house.

(869) Breach of peace, tumultuous conduct, &c., in Vermont.

REFUSING TO QUELL RIOT, &C.

(870) Refusing to aid a constable in quelling a riot.

(871) Refusing to assist a constable in carrying offender to prison.

(872) Assault and rescue.

RESCUE, &c.

(873) Against two for a rescue, one of them being in custody of an officer of the marshal's court, upon process, &c.

(874) Assault, and rescuing goods seized as a distress for rent after a fraudulent removal.

(875) Assault on an officer of justice, and taking from him goods which had been seized by him on execution.

(876) Rescuing goods distrained for rent of a house.

(877) Riot, and rescue of fugitive slaves from their masters.

(878) Prison breach.

ASSAULT ON AND RESISTANCE TO Officers, &c.

(879) Assault on a constable, &c.

(880) Another form for same.
(881)

Second count. Averring arrest of defendant by said constable, &c., and proceedings before a justice of the peace, upon which defendant was committed in default of bail, charging resistance by defendant to the officer when detaining him in custody.

(882) Resistance to a constable employed in the arrest of a fugitive charged

with larceny.

(883) Resistance to a peace-officer in the performance of his duties; form used
in New York.

(884) Resisting constable, while serving State warrant, under Ohio statute.
(885) Resistance to the marshal of the United States in the service of a writ of

Virginia.

Ohio.

arrest.

(Analysis of Riot, Affray, etc., in Wh. C. L.)

Duty of justices, &c., to disperse riots, § 2464.

Persons arrested, &c., to be committed, &c., § 2465.

Justice, &c., failing to do his duty, how to be punished, § 2466.

Justice may call in posse, § 2467.

Homicide by officers under such act justifiable, of officers, all rioters responsible for, § 2468.

Pulling down building, § 2469.

Carrying concealed weapons, § 2470.

Riot, § 2471.

Judges and other peace officers to warn rioters to disperse, and may call to their aid the power of the county, § 2472.

B. RIOT, UNLAWFUL ASSEMBLY AND AFFRAY AT COMMON LAW.

I. Offence generally, § 2473.

II. Indictment, § 2501.

(886) Refusal to aid a constable in the service of a capias ad respondendum, issued by a justice of the peace.

(887) Assault, with intention to obstruct the apprehension of a party charged with an offence.

(888) Assault on a deputy-jailer in the execution of his office.

(889) Resisting a sheriff in execution of his office. First count, assault on sheriff at common law.

(890)

Second count.

The same under statute, specially setting out the execution which the sheriff was serving, &c.

(891) Assault on police officer of the city of Boston.

(892) Assaulting a person specially deputized by a justice of the peace to serve

a warrant.

(893) Assaulting peace or revenue officers in the execution of their duties. (894) Resisting an officer of the customs in the discharge of his duty.

(849) General frame of indictment for riot.

THAT A. B., (a) late of, &c., C. D., late of, &c., E. F., late of, &c., with divers evil disposed persons, to the number of ten or more, to the jurors aforesaid as yet unknown, on, &c., with force and arms at, &c., did unlawfully, riotously, routously and tumultuously assemble and meet together(b) to disturb the peace of the said commonwealth, and being so then and there assembled and gathered together, (c) did then and there make great noise, riot, tumult and disturbance, and then and there unlawfully, riotously, routously and tumultuously (cc) remained and continued together, making such noises, tumults and disturbances for a space of time, to wit, &c., to the great terror(d) and disturbance not only of the good subjects of the said commonwealth there inhabiting and residing, but of all the other citizens of the said commonwealth there passing and repassing in and along the public streets and queen's common highways there, in contempt, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(It is usual to add a count for assault and battery, on which the defendant may be acquitted if convicted of riot. (e)

(a) On an indictment for a riot against three or more, if a verdict acquit all but two, and find them guilty, the finding is repugnant and void unless the indictment charge them with having made such a riot, together with divers other persons unknown; for otherwise it appears that the defendants are found guilty of an offence whereof it is impossible that they should be guilty for there can be no riot where there are no more than two persons; R. v. Sudbury and others, 1 Ld. Raym. 484; Wh. C. L. § 431, 2473, &c. And let it be observed, that though women are amenable to the law as rioters, infants of either sex under the years of discretion are not; Hawk. b. 1, c. 65, s. 14. But where six were indicted for a riot, and two of them died before trial, two were acquitted and two only found guilty, yet judgment was given upon this verdict, for, by Ld. Mansfield, they must have been found guilty with one or both of those who had not been tried, or it could not have been a riot; R. v. Scott, 3 Burr. R. 1262.

(b) An unlawful assembly, according to the common opinion, is a disturbance of the peace by persons barely assembling together with an intent to do a thing which, if it were executed, would make them rioters, but neither actually executing it nor making a motion towards the execution of it; Hawk. b. 1, c. 65. See R. v. Birt, 5 C. & P. 154, and the charge of Tindal C. J., at Stafford Special Commission, in 1842, C. & M. 661; Wh. C. L. § 2473, &c.

“But,” Hawkins adds, "this seems altogether much too narrow a definition. For any meeting whatever of great numbers of people, with such circumstances of terror as cannot but endanger the public peace and raise fears and jealousies among the queen's subjects, seems properly to be an unlawful assembly; as where great numbers complaining of a common grievance (e. g. the enclosure of land in which they all claim a right of common, Hawk. b. 1, c. 65, s. 8), meet together armed in a warlike manner, in order to consult together concerning the most proper means for the recovery of their interests: for no one can foresee what may be the event of such an assembly; Hawk. b. 1, c. 65, s. 9; 4 Bla. Com. 142. It has been lately laid down, that the meeting must be under such circumstances as would give firm and rational men

reasonable ground to fear breach of the peace. Alderson B., in Reg. v. Vincent, 9 C. & P. 91."

An assembly of a man's friends for the defence of his person against those who threaten to beat him, if he go to such a market, or the like, is unlawful; for he who is in fear of such insults ought to demand surety of the peace, and not make use of such violent methods, which cannot but be attended with the danger of raising tumults and disorders to the disturbance of the public peace. See the admirable view given of this branch of the law, in the charge of Judge King in the Kensington riot cases, 4. Pa. L. J. 33. An assembly of a man's friends in his own house, for the defence of the possession thereof against those who threaten to make an unlawful entry thereinto, or for the defence of his person against those who threaten to beat him therein, is allowed by law; for a man's house is looked upon as his castle; Hawk. b. 1, c. 65, s. 10; 11 Mod. 116. But the like liberty is not allowed by the law to a man in defence of other property (e. g. his close); R. v. The Bishop of Bangor, 1 Russ. C. & M. 255; Dickinson's Q. S. tit. Forcible Entry.

If a number of persons, being met together at a fair or market, or any other lawful or innocent occasion, happen on a sudden quarrel to break the peace, it seems agreed that they are not guilty of a riot, but of sudden affray only, of which none are guilty but those who actually engage in it, because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly, without any previous intention concerning it; Hawk. b. 1, c. 65, s. 3; State v. Snow, 18 Maine 346; State v. Cole, 2 M'Cord 117. If the object of the assembly be lawful, it in general requires stronger evidence of the terror of the means to induce a jury to return a verdict of guilty, than if the object were unlawful; and it has ever been holden that if a number of persons assemble for the purpose of abating a public nuisance, and appear with spades, iron crows, and the proper tools for that purpose, and abate it accordingly, without doing more, it is no riot, Dalt. c. 137; unless threatening language or other misbehavior in apparent disturbance of the peace be at the same time used; ib. Yet it is said, that if persons innocently assembled together do afterwards, upon a dispute happening to arise among them, form themselves into parties with promises of mutual assistance, and then make an affray, they are guilty of a riot; because upon their confederating together with an intention to break the peace, they may as properly be said to be assembled together for that purpose from the time of such confederacy, as if their first coming together had been on such a design; ib.; Wh. C. L. 524, et seq. If a person, seeing others actually engaged in a riot, do join himself unto them and assist them therein, he is as much a rioter as if he had at first assembled with them for the same purpose, inasmuch as he has no pretence to contend that he came innocently into the company, but appears to have joined himself unto them with an intention to second them in the execution of their unlawful enterprise and it would be endless as well as superfluous to examine whether every particular person engaged in a riot were, in truth, one of the first assembly or actually had a previous knowledge of the design of its movers; Hawk. b. 1, c. 65, s. 3.

It has been holden that the enterprise ought to be accompanied with some offer of violence either to the person of a man or to his possessions, as by beating him or foreing him to quit the possession of his lands or goods, or the like; and from hence it seems to follow that persons riding together on the road with unusual weapons, or otherwise assembling together in such a manner as is apt to raise a terror in the people, without any offer of violence to any one in respect either of his person or possessions, are not properly guilty of a riot, but only of an unlawful assembly; ib. s. 4; Wh. C. L. § 2473-2500. Thus where a band of men, consisting of eight or ten persons, disguised, paraded at night through the streets of a town, armed with guns or pistols or both, and marched backward and forward through the streets, shooting guns and blowing horns, to the terror and alarm of inhabitants, it was held that the perpetrators were guilty of a riot, and a motion for a new trial was refused: State v. Brazil et al., Rice R. 257. However, it seems to be clearly agreed that in every riot there must be some circumstance either of actual violence or force, or at least of an apparent tendency thereto, as is naturally apt to strike a terror into the people, as the show of arms, threatening speeches or turbulent gestures, ib. s. 4: for every such offence must be laid to the terror of the people; ib.; R. v. Hughes, 4 C. & P. 373. "And from hence," adds Hawkins, "it clearly follows that assemblies at wakes or other festival times, or meetings for exercise of common sports or diversions, as bull-baiting, wrestling and such like are not riotous. And from the same ground also it seems to follow that it is possible for three persons or more to assemble together with an intent to execute a wrongful act, and also actually to perform their intended enterprise, without being rioters; as if a competent number of persons assemble together in order to carry off a piece of timber to which one of the company has a pretended right, and afterwards to carry it away without any threatening words or other circumstances of

(850) Affray at common law. (f)

That J. S., &c., and J. W., &c., on, &c., with force and arms, at, &c., being unlawfully assembled together and arrayed in a warlike manner, then and there in a certain public street and highway there situate, unlawfully and to the great terror and disturbance of divers citizens of the said commonwealth then and there being, did make an affray by then and there fighting with each other in the public street and highway, (a) in contempt of our said lady the queen and her laws, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(851) Unlawful assembly and assault.(g)

That J. D. et al., together with divers other evil disposed persons to the number of three and more (to the jurors aforesaid yet unknown), on, &c., with force and arms, &c., at, &c., did unlawfully, riotously and routously assemble and gather together to disturb the peace of the said commonwealth; and so being then and there assembled and gathered together, in and upon one S. W., in the peace of God and the said commonwealth then and there being, unlawfully, riotously and routously did make an assault, and him the said S. W. then and there unlawfully, riotously and routously did beat, wound and ill-treat, so that his life was greatly despaired of, and other wrongs

terror." He adds, that by parity of reasoning, the assembling together in a peaceful manner to do a thing contrary to a statute (e. g. to celebrate mass), and afterwards peaceably performing the thing intended, cannot be a riot; Hawk. b. 1, c. 65, s. 5.

Whether the proclamation from the riot act be read or not, the common law misdemeanor of riot remains; and magistrates, constables, and even private persons may disperse the offenders, and by force if it cannot be otherwise accomplished; R. v. Fursy, 6 C. & P. 81. It is sufficient to allege that the defendants assembled "with force and arms," and being so assemble committed acts of violence, without repeating the words "force and arms;" Com. v. Runnels, 10 Mass. 518. Where the indictment charged in substance "that the defendants unlawfully, riotously and routously assembled together to disturb the peace of the state, and being so assembled did make great noise, riot, tumult and disturbance for a long space of time, to the great terror and disturbance of the people," &c., it was held conformable to the precedents in such cases, and sufficient; State v. Brazil et al., Rice R. 257. An indictment charging that the defendants, "with force and arms, at the house of one S. R., situate, &c., did then and there wickedly, maliciously and mischievously, and to the terror and dismay of the said S. R., fire several guns," is good. No technical words are necessary, but it should appear that such force and violence were used as amount to a breach of the peace. All that the law requires in indictments of this kind is, that the facts shall be so stated as to show a breach of the peace, and not merely a civil trespass; State r. Langford, 3 Hawks. 381.

(c) It is said that an unlawful purpose of assembly must be shown; but this seems doubtful, as a riot may occur though the orignal object of the meeting was lawful. See R. v. Gulston, 2 Ld. Raym. 1210.

(cc) This repetition is it seems unnecessary, Com. v. Runnels, 10 Mass. 518.

(d) These words are essential to sustain a charge of riot; but if the indictment omit them, and riotous acts, as cutting down fences, &c., are proved, it will still support a conviction of an unlawful "assembly;" R. v. Cox, 4 C. & P. 538; Parke B. "So, if after assembling for what if executed would make the parties rioters, they separate without carrying their purpose into effect;" R. v. Birt, 5 C. & P. 154; Patteson J. (e) Shause v. Com., 5 Barr 83; R. v. Higgins, 2 East R. 5.

(f) Archbold's C. P. 5th Am. ed. 708.

(a) See State v. Bonthal, 5 Hump. 519; State v. Priddy, 4 Hump. 429.

(g) Com. v. Dupuy, 6 Pa. L. J. 223. The defendants were shown to have entered the Weccaco church in Philadelphia County, for the purpose of preventing a particular minister from officiating, and to have, when there, created considerable disturbance. A verdict of guilty was rendered under instructions from Kennedy J.; the indictment being held to cover the offence.