v. Handy, 4 Harringt. 556. But in Commonwealth v. Green, 2 Pick. 380, it was held by the learned Judges, (Parker, Ch. J., dissenting,) that a boy, un-* der the age of fourteen years, might be lawfully convicted of an assault with intent to commit a rape; on the ground that, if near that age, he might be capable of that kind of force which constitutes an essential ingredient in the crime; and that females might be in as much danger from precocious boys as from men. And see Williams v. The State, supra. Ideo quære. If the crime is consummated by penetration alone, of which a boy under fourteen may be physically capable, and yet is in law conclusively presumed incapable, how can he be found guilty of an attempt to commit a crime, which, in contemplation of law is impossible to be committed, or can have no existence? In England this question is supposed to be put at rest by the stat. 1 Vict. c. 85, 11, which enacts that "on the trial of any person, for any felony whatever, where the crime charged shall include assault, the Jury may acquit of the felony, and find the party guilty of an assault, if the cvidence shall warrant such finding." See Regina v. Brimilow, 9 C. & P. 366.

RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.

§ 216. To constitute either of these offences, it is necessary that there be three or more persons tumultuously assembled of their own authority, with intent mutually to assist one another against all who shall oppose them in the doing either of an unlawful act of a private nature, or of a lawful act in a violent and tumultuous manner. If the act is done, in whole or in part, it is a RIOT. If no act is done, but some advance towards it is made, such as proceeding towards the place, or the like, it is a ROUT. If they part without doing it or making any motion towards it, the offence is merely that of an UNLAWFUL ASSEMBLY.1

1 4 Bl. Comm. 146; 1 Hawk. P. C. ch. 65, § 1; 1 Russ. on Crimes, 266, 272; 3 Inst. 176; The State v. Cole, 2 McCord, 117; The State v. Brooks, 1 Hill, S. Car. R. 361; Pennsylvania v. Craig, Addis. R. 190; The State v. Snow, 6 Shepl. 346; The State v. Connolly, 3 Rich. 337; Rex v. Birt, 5 C. & P. 154. In an indictment for that species of riots which consists in going about armed, &c., without committing any act, the words in terrorem populi are necessary, the terror to the public being of the essence of that offence; but in those riots in which an unlawful act is committed, these words are useless. Regina v. Soley, 11 Mod. 116, per Ld. Holt; 10 Mass. 520; Rex v. Hughes, 4 C. & P. 373. To disturb another in the enjoyment of a lawful right, if it be openly done by numbers unlawfully combined, is a riot. Commonwealth v. Runnells, 10 Mass. 518. In some of the United States, a riot is defined by statute. Thus, in Maine, it is enacted that "When three or more persons together, and in a violent or tumultuous manner, commit an unlawful act, or together do a lawful act in an unlawful, violent, or tumultuous manner, to the terror or disturbance of others, they shall be deemed guilty of a riot." Rev. Stat. ch. 159, § 3. It is defined in the same words, in the Code of Iowa, Art. 2740. In Missouri, it is declared to be a riot, “If three or more persons shall assemble together with the intent, or, being

§ 217. In support of the indictment for a riot, it must be proved that at least three persons were engaged in the unlawful act; and if the evidence extends only to one or two persons, all the defendants must be acquitted of this particular charge, though the act proved against one or two might amount to an assault, or some other offence.1

§ 218. There must also be evidence of an unlawful assembling; but it is not necessary to prove that when the parties first met they came together unlawfully; for if, being lawfully together, a dispute arises, and thereupon they form into parties, with promises of mutual assistance, and then make an affray, the assemblage, originally lawful, will be converted into a riot. Nor is it necessary to show that every defendant was present at the original assemblage; for a person, joining others already engaged in a riot, is equally guilty as if he had joined them at the beginning. So, if persons, being lawfully assembled, should afterwards confederate to do an unlawful act, and proceed to execute it, by doing any act of violence in a tumultuous manner, it is a riot.3

§ 219. If the indictment charges the actual perpetration of a deed of violence, such as an assault and battery, or, the pull

assembled, shall agree mutually to assist one another to do any unlawful act, with force or violence, against the person or property of another, or against the peace, or to the terror of the people, and shall accomplish the purpose intended, or do any unlawful act in furtherance of such purpose, in a violent or turbulent manner," &c. See Missouri Rev. Stat. 1845, Ch. 47, Art. 7, § 6. The Commissioners for revising the penal code of Massachusetts, expressed their view of this offence, at common law, in these terms:- "A riot is where three or more, being in unlawful assembly, join in doing or actually beginning to do an act, with tumult and violence not authorized by law, and striking terror, or tending to strike terror, into others." See their Report, Jan. 1844, ch. 34, § 5.

1 Rex v. Sudbury, 1 Ld. Raym. 484; Rex v. Scott, 3 Burr. 1262; Pennsylvania v. Huston, Addis. R. 334; The State v. Allison, 3 Yerg. 428.

21 Hawk. P. C. ch. 65, § 3; Rex v. Royce, 4 Burr. 2073; Anon. 6 Mod. 43; The State v. Brazil, Rice, R. 258.

3 The State v. Snow, 6 Shepl. 346.

ing down of a house, it is not necessary to allege or prove that it was done to the terror and disturbance of the people; but proof of all the other circumstances alleged, will support the indictment, without proving distinctly any terror. But where the offence consists in tumultuously disturbing the peace, by show of arms, threatening speeches, turbulent gestures, or the like, without the perpetration of any deed of violence, it is necessary to allege and prove that such conduct was to the disturbance and terror of the good citizens of the State.1 Yet there may be a show of arms and a numerous assemblage, without a riot. Thus, if a man should assemble his friends or others, and arm them, in defence of his house or person against a threatened unlawful and violent attack; or should employ a number of persons, with spades or other proper implements, to assist him in peaceably removing a nuisance, and they do so; it is neither a forcible entry, nor a riot. Nor is it a riot, when a sheriff or constable, or perhaps a private person, assembles a competent number of men forcibly to put down a rebellion, to resist enemies, or to suppress a riot.2

§ 220. It must also be shown that the object of the rioters was of a private nature, in contradistinction from those which concern the whole community, such as the redress of public grievances, or the obstruction of the Courts of Justice, or to resist the execution of a public statute everywhere and at all hazards; acts of this kind being treasonable. Thus, if the object of an insurrection or tumultuous assemblage be supposed to affect only the persons assembled, or be confined to particular persons or districts, such as to destroy a particular inclosure, to remove a local nuisance, to release a particular

1 1 Hawk. P. C. ch. 65, § 5; Regina v. Soley, 11 Mod. 115; 2 Salk. 594, 595; Howard v. Bell, Hob. 91; Commonwealth v. Runnells, 10 Mass. 518; Clifford v. Brandon, 2 Campb. 358, 369; The State v. Brazil, Rice, R. 258; The State v. Brook, 1 Hill, S. Car. R. 362; Rex v. Hughes, 4 C. & P. 373. But see Rex v. Cox, Id. 538.

2 1 Hawk. P. C. ch. 65, § 2; 1 Hale, P. C. 487, 495, 496; 1 Russ. on Crimes, 266.

prisoner, or the like, it is not treason, but is a riot. If the perpetration of an unlawful act of violence be charged, as the riotous act, such as an assault and battery, it must be proved, or the parties must be acquitted; and if the offence is alleged to consist in a riotous assemblage and conduct, to the terror of the citizens, this part of the indictment will be supported by proof that one person only was terrified.2

§ 221. In proving the guilt of the defendants, as participators in the riot, the regular and proper order of proceeding is similar to that which is adopted in prosecutions for conspiracy, namely, first to prove the combination, and then to show what was done in pursuance of the unlawful design. But this, as we have heretofore seen, is not an imperative rule; it rests in the discretion of the Judge to prescribe the order of proofs in each particular case; and if he deems it expedient, under the special circumstances, to permit the prosecutor first to prove the riotous acts, it will be only after the whole case, on the part of the government, has been openly stated, and the prosecutor has undertaken to connect the defendants with the acts done. But it will be sufficient to fix the guilt of any defendant, if it be proved that he joined himself to the others after the riot began, or encouraged them by words, signs or gestures, or by wearing their badge, or otherwise took part in their proceedings.4

222. A rout is proved in the same manner as a riot, the proof only showing some advance made towards a riotous act, but stopping short of its actual perpetration. And an unlawful assembly is proved by similar evidence, without

11 Hawk. P. C. ch. 65, § 6; 1 East, P. C. 75; Rex v. Birt, 5 C. & P. 154; Douglass v. The State, 6 Yerg. 525.

2 Regina v. Langford, 1 Car. & Marshm. 602.

3 See supra, tit. CONSPIRACY; Ante, Vol. 1, § 51, a; Id. § 111; Nicholson's case, 1 Lewin, 300; 1 East, P. C. 96, § 37; Redford v. Birley, 3 Stark.

R. 76.

4 1 Hale, P. C. 462, 463; Clifford v. Brandon, 2 Campb. 358, 370; Rex v. Royce, 4 Burr. 2073.