105 Ga. 787 | Ga. | 1898
The plaintiff in error was jointly indicted with. Lucius Goodwin, Gene Hamilton and Ike Sanders, for the offense of riot, by the grand jury of Bartow county. It is alleged in the bill of indictment that the persons named did, in a violent and tumultuous manner, gather and assemble together, and being so assembled, in a violent and tumultuous manner did do an unlawful act of violence by cursing, and urging John Dixon Jr. to shoot Cliff Johnson, and preventing a gun from being taken from John Dixon Jr., who was threatening to shoot the said Cliff Johnson; and did otherwise act in a violent and tumultuous manner. The State placed the plaintiff in error on trial,, and on arraignment he pleaded not guilty.
The evidence, briefly stated, was as follows: Cliff Johnson testified: In the month of April there was a disturbance in Kingston in front of the storehouse of Hill, which was the furthest store on the east side of town. A number of negroes and white people assembled on the sidewalk and street in front of the Store. There was loud and boisterous talking and some cursing. Heard Lucius Goodwin say he would kill “the God damn rascal” if he did him that way. I heard Gene Hamilton say, “If it had been me I would do him up.” I heard John Dixon Sr. say,. “Anybody who would strike my son had better first step into-hell.” Do not remember anything -else that was said. The first-time I saw John Dixon Jr. that-night, Reynolds, Nance and myself were together near Griffin’s store, just west of Hill’s store and on the same side of the street. Dixon Jr. passed us. We went on behind him as far as Hill’s store. There Reynolds and Nance stopped. Dixon was about forty feet beyond, and L called him to stop,' and went to where he was. In a few moments I returned and went into Hill’s store. Soon after I went in, Dixon Jr. came to the front door with a gun, and attempted to enter. He was by himself, and Davidson, a negro who was at
Nance testified that Reynolds, Johnson and himself were together, and Dixon passed, and while witness and Reynolds stopped at Hill’s store, Johnson called Dixon to stop and went to where he was. Heard a noise as if some one was striking, and heard Dixon crying. Johnson returned to Hill’s store and went in. He further testified: I went into the store and remained near the porch. Very soon I heard the accused and his son John coming from towards Sanders’s shop, and just before they got in front of Hill’s store I heard Dixon Jr. say to his father, “He’s got a gun”; and his father said to him, “You go and get one too.” And when they got in front of the store I heard the accused say, “Anybody who hits my son had just as well jump into hell.” Then I think Dixon Jr. went 'up the alley, and the old man went down towards Griffin’s store. About five minutes afterwards Dixon Jr. came to the front of Hill’s store with a gun and attempted to enter, asking, “ Where is he? I will put two loads in him.” Davidson took hold of him and prevented him from entering the store, and took him down towards Griffin’s store. Yery soon a crowd assembled on the sidewalk in front of Hill’s store. There were present the accused, John Dixon Jr., Lucius Goodwin, Gene Hamilton and Sanders. Hamilton had a knife in his hand, whittling. I heard him say, “If he had done that to me I would have killed the God damn son of a bitch.” There was a good deal of loud talking and some cursing. Hill came out and said to the crowd that none of them could enter his store, that he did not want to have any fuss there; and very soon the crowd dispersed. None of them made any effort to enter the store. All remained in front of the,store on the sidewalk and in the
It is declared by our law that “If two or more persons do an unlawful act of violence, or any other act in a violent and tumultuous manner, they shall be guilty of a riot and be punished as for a misdemeanor.” Penal Code, § 354. And when, done, the riot, although it must be the act of at least two persons, is but one offense. Jacobs v. State, 20 Ga. 841; Rachels v. State, 51 Ga. 374-5; Stafford v. State, 93 Ga. 207. Such offense is a joint one, and one person alone can not be indicted. Robinson v. State, 84 Ga. 680. Under the provisions of the Code of 1882, §5414, which gives the definition and prescribes the punishment for the offense of riot, it vras declared that “If any two or more persons, either with or without a common cause of quarrel, do an unlawful act of violence, or any other act in.a violent and tumultuous manner,” such person would be guilty of a riot. It will be noticed that the codifiers eliminated from the definition of riot, as it appears in the Code of 1895, the words, “with or without a common cause of quarrel” ; and very properly so, because if an unlawful act of violence, ■when done by two persons with a common cause of quarrel, was a riot, and if done in the same manner by two .persons without a common cause of quarrel was a riot, then, whether they did or did not have a common cause of quarrel was immaterial, so far as the offense was concerned; and the section, after the words are stricken, means exactly the same thing as it did before they were stricken. It was for this reason, we apprehend, that the codifiers rejected the words as surplusage. In any event, the section'is to be construed as it stands. Bu; eliminating the condition as to whether the persons doing the act had or did not have a common cause of quarrel in no possible way qualified the rule of law as to the intention necessary to hold one criminally responsible. Defining the offense of riot, the compilers of the American and English Encyclopaedia of Law, citing a number of cases and eminent authors, define riot to be, “a tumultuous disturbance of the peace - by three
Reversed.