5 Pa. 83 | Pa. | 1847
The act of 1705, Dunlap, 16, declares, “ If any persons, to the number of three or more, shall meet together, with clubs, staves, or any other hurtful weapons, to the terror of any peaceable people or inhabitants of this province, and shall commit, or design to commit violence or injury upon the person or goods of any of the said inhabitants, and shall be convicted thereof, such persons shall be reputed and punished as rioters according to the laws of England, and such act of terror and violence, or design of violence, shall be deemed and accounted a riot.” -• This act has never been changed or altered; it is an addition to the common law, as then known in the province, and still known in this state, — as riots, routs, and unlawful assemblies were blended together, and all deemed and declared to be riots; hence indictments for routs and unlawful assemblies are unknown in our criminal courts; by this act all such mobs, routs, and unlawful assemblies, as the act describes, are declared to be riots; all kinds of riots known to the common law are still indictable as such.
In the first count -in this indictment, the plaintiff in error, with
The second count was substantially in the same form, but omitting the pulling down the house, and charging the defendants with a riotous assault and battery on James Wells, and the third count charged them generally with a riot. The finding of the grand jury was: “True bill against the whole for a riot, and for an assault and battery against William Shouse and John Shouse. The traverse jury found the defendants not guilty of a riot, but William ,Shouse guilty of an assault and battery.
Motion in arrest of judgment: “ That under the indictment in this ease, William Shouse could not be convicted of a common assault and battery.” After argument, the Quarter Sessions overruled the motion in arrest of judgment, and sentenced William Shouse, the defendant, to pay a fine of six cents and the costs. The ease found its way to this court, where the following errors are assigned :
1. That the defendant below, the plaintiff in error, was not convicted of any offence for which he was indicted.
2. That the court below ought to have arrested the judgment for the reasons filed.
3. That the conviction and sentence of William Shouse, under the indictment, were erroneous, as he and the other defendants were indicted, '1st. For a riot and pulling down a house; 2d.- For a riot and riotous assault and battery; and 3d. For a riot in making a great noise and tumult; and the jury have expressly acquitted all of the riot, and could not, under this indictment, find any one of the defendants guilty of an assault and battery alone, without a count charging that offence singly.,
These assignments of error embrace but one view of the ease, as all were acquitted of the riot: whether any one of them could legally be convicted and sentenced on the second count in the indictment, which charges all the defendants with a riot and a riotous assault and battery, of the latter division of the offence. It would
When a count in an indictment contains a divisible averment, it is the province of the petit jury to discriminate and find the divisible offence; and this distinction runs through the whole criminal law. It is enough to prove so much of the indictment as shows that the defendants, or any one of them has committed a substantial crime therein specified; 2 Camp. 585; Roscoe, Crim. Ev.76, (92.) As upon an indictment for murder, the prisoner may be .convicted of manslaughter; or, on an indictment for burglary and larceny, the jury may find him guilty of the simple felony, and acquit him of the burglary; 2 Hale, P. C. 302. Where an indictment charged the defendant with an assault, and an intent to abuse and carnally' know a female child, held, that he might be convicted of an assault to abuse her simply, as the averment of such intention is divisible ; Rex v. Dawson, 3 Starkie, 62, (14 E. C. L. R.) On an indictment for an assault with intent to murder, there may be a conviction of an assault simply; 5 Ohio Rep. 242. This is the law and practice of Pennsylvania. The grand jury found the bill against all the defendants for a riot, and added for an assault and battery against the two Shouses. I agree the grand jury do not possess the divisible power of a traverse jury — but we must bear in mind only William Shouse is before us, as all 'the others were acquitted, and both the findings, as to him, are affirmative of the whole indictment. So far as he is concerned, there is nothing negative; the whole bill is found. Was the charge in the second count divisible ? We all think it was ;, it is so on principle, and such has been, so far as our knowledge extends, the universal practice of Pennsylvania. The learned counsel of the plaintiff in error relies on the case of The King v. Sudbury, in 1 Ld. Raym. 484. There three were indicted for riot and a riotous assault and battery in the same count, two only were convicted; the conviction of the three being necessary to constitute a riot. There was no special finding by the petit jury against either of the defendants of an assault and battery. The counsel for the crown, as they could
The judgment is affirmed.
Until March 29, Rogers, J., was absent at Nisi Prius.