Commonwealth v. Gibney, 84 Mass. 150

Commonwealth v. Gibney

84 Mass. 150 | Mass. | 1861

Dewey, J.

It was held as early as Regina v. Soley, 2 Salk *152594, that judgment should be arrested and the indictment held bad, “ because it is not said that the defendants unlawfully assembled.” The proposition thus stated seems to be held as correct in the later elementary writers. To maintain an indictment for a riot, it is said in Archb. Grim. Pr. 589, that the prosecutor must prove: 1. The assembling; 2. The intent — namely, “that they so assembled together with intent to execute some enterprise, of a private nature, and also mutually to assist one another against any person who should oppose them in doing so. The” intent is proved in this, as in every other case, by proving facts from which the jury may fairly presume it.” The definition of a riot includes the statement “ of three persons or more assembling together.” 1 Russell on Crimes, 266. In 2 Deacon’s Crim. Law, 1113, a riot is said to be “ a tumultuous meeting of three or more persons, who actually do an unlawful act of violence, either with or without a common cause or quarrel;” “ or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner.”

The distinction in criminal treatises, in the definitions of riots, routs and unlawful assemblies, assumes that there must be an assembling together, and an unlawful assembly; although the assembly may not have been unlawful on the first coming together of the parties, but becomes so by their engaging in a common cause, to be accomplished with violence and in a tumultuous manner. And the precedents for indictments for a riot, with the exception of a single one in Davis’s Precedents, the others in that book being different, all allege an unlawful assembling together. This seems to be a necessary form in a proper indictment for a riot, although the proof of such unlawful assembly may be made by showing three or more persons acting in concert in a riotous manner, as to using violence, exciting fear, &c.

The present indictment cannot therefore be sustained as a good indictment for a riot, for want of proper allegations of the assembling together of three or more persons.

It cannot be sustained as an indictment for forcible entry, the allegations not being adapted to a charge of that offence.

It cannot be sústained as an indictment for malicious *153mischief, for the like reason. Nor can it be maintained as a charge at common law for a disturbance of the peace. A man cannot be indicted for a mere trespass. No indictment lies at common law for mere trespass committed to land or goods unless there be a riot or forcible entry. The King v. Wilson 8 T. R. 357. The words “ violently and routously,” here used have no particular pertinency, except as terms appropriate to a formal indictment for riot, charging also an unlawful assem bly. In the present indictment there is nothing more alleged than a trespass, with violence. There is no allegation that any person was in the building, but only of a breaking of doors and windows of a building, which blight be a mere trespass.

If the case was a proper one for an indictment for a riot, as it probably was, that offence not being properly charged, the indictment is bad, and the motion in arrest of judgment must prevail.

Judgment arrested