The appellants were tried and convicted upon an indictment charging them with having engaged in .a riot.
The rules of criminal procedure do not recognize the right of an accused to move to strike out part of an indictment. There is no necessity for such a motion. If the matter objected to is mere surplusage it does no harm; if it is material it makes the indictment double, and for that vice the remedy is a motion to quash.
What is said and done by persons during the time they are-engaged in a riot constitutes the res gestee, and it is, of course, competent to prove all that is said and done. If the violent, or disorderly conduct of the rioters results in injury to property, and the act causing the injury is committed during the riot, the State may prove the act which caused the injury. This evidence is not admitted for the purpose of establishing another offence, but because it is part of the occurrence which constitutes the riot and tends to show that the conduct, of the defendant was riotous and violent.
Only two of the instructions given by the court are brought into the record, the ninth and the eleventh, and we are not able to say that any error was committed in giving them, for, if they had been accompanied by other instructions correctly expressing the law, there would have been no error, as the utmost that can be urged against these two instructions is that they are somewhat obscure and incomplete, and these are defects which the other instructions might have fully remedied. It is well settled that instructions are to be regarded as an entirety, and if, when so regarded, they express the law correctly, and without material contradiction, there is no error. Goodwin v. State,
Judgment affirmed.