Opinion by
Mr. Commissioner King.
1. The points presented for determination are: (1) Is the verdict sufficient to sustain a judgment of conviction of riot under Sections 1913 and 1914 of the Code (B. & C. Comp.) ? (1) If not sufficient for that purpose, does the verdict acquit defendants of the charge contained in the indictment? Section 1913 of the Code (B. & C. Comp.) is as follows:
“Any use of force or violence, or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law, is riot. Whenever three or more persons assemble with intent, or with means and preparations, to do an unlawful act, which would be riot if actually committed, but do not act towards the commission thereof, or whenever such persons assemble without authority of law, and in such manner as is adapted to disturb the public peace or excite public alarm, or disguised in a manner to prevent them from being identified, such an assembly is an unlawful assembly.”
The next section provides, in substance, that if any person shall be found guilty of participating in any riot, *138such person shall be punished in the manner therein specified. No provision is made for punishment of any person participating in an “unlawful assembly,” nor is such assembly by the statute declared to be a crime or misdemeanor. It will be observed that the section of the statute quoted clearly defines and distinguishes an unlawful assembly from riot, which distinction is practically the same as that recognized at common law, the distinguishing features of which are stated in 29 Am. & Eng. Enc. Law (2 ed.), 342, as follows:
“If the parties assemble'in a tumultuous manner, and actually execute their purpose with violence, it is a riot; but, if they merely meet on a purpose which, if executed, would make them rioters, and having done nothing, they separate without carrying their purpose into effect, it is an unlawful assembly.”
2. While, where not defined by statute, we may look to the common law for a definition of the offense, we must always look to our Code to determine whether the act committed constitutes a crime. This rule has been well settled and needs no elucidation at our hands. State v. Vowels, 4 Or. 324; State v. Ayre, 49 Or. 61, 66 (88 Pac. 653: 10 L. R. A. (N. S.), 992). It will be observed from section 1913 that the Code defines “unlawful assembly,” but does not there, nor elsewhere, declare a participation therein, when not accompanied by violence, to be a misdemeanor or crime, and affixes no penalty therefor. It follows that an assemblage of persons, unaccompanied by any acts such as would bring it within the charge of riot, as defined by our Code, is not a crime under our statute. Clark, Crimes (2 ed.), 1; 12 Cyc. 139, 140; State v. Gaunt, 13 Or. 115 (9 Pac. 55). True, in order to maintain a conviction for a riot, such facts must be established as will include an “unlawful assemblage,” as defined by the statute; that is to say, three or more persons, when acting in such manner as to be guilty of riot, are necessarily unlawfully assembled, and *139"come within the statutory, as well as common-law, definition thereof, and while the assemblage in the first instance may not have been unlawful, it does become so upon the commission of such acts of violence as will constitute a riot.
3. The indictment includes a statement of facts showing an unlawful assemblage, which is followed by such statement of incidents as would, if true, constitute a riot; but it does not follow that because proof of facts disclosing an unlawful assemblage is essential to a conviction under an indictment for riot, the converse is true. Both are essential to that crime, as defined by the statute, but the lesser does not include the greater. To illustrate: “Intent” is essential to the commission of the crime of murder, but the showing of an intent alone would not sustain a conviction, for, although such intent, whether acted upon or not, constitutes a moral wrong, it does not, unless carried into execution, come within any of the crimes made punishable by our Code; and, should the statute define an “unlawful intent,” such definition, standing alone, would not be sufficient to make it a crime. For the same reason the mere defining by the Code of any unlawful assembly is not sufficient to bring it within any of the crimes covered by our statute. Unlawful assembly at common law is a separate and distinct offense, and is recognized as such; and, even though it be assumed that under an indictment for riot the accused could, under the common law, be convicted of the lesser offense, it not being an offense under our Code, a conviction therefor cannot be sustained. Our attention is called to Newby v. Territory, 1 Or. 164, for the purpose of showing that a person may be convicted of either an “unlawful assembly” or a “riot” under the same indictment. In the beginning of the opinion in that case the court uses the language “riot, or unlawful assembly,” but it will be observed from an examination of the opinion that the defendants there were convicted of riot. The *140court evidently had in mind the language of the statute' as including only the words “unlawful assembly,” as one of the elements necessary to be proved against the accused in order to warrant a conviction, and certainly did not mean to use the two expressions synonymously. To do so would be .to disregard all rules of distinction between the two unlawful acts, not only at common law but under the statute as well.
4. The next question with which we are confronted is: Does the finding of the jury by their verdict that there was an unlawful assemblage, including the special findings to the eifect that “defendants or either of them” were armed, and defendant Barias had a “dangerous weapon” on the occasion, amount to an acquittal of the crime charged? We think it does. The jury by their verdict merely said, in eifect, that the defendants were assembled in such manner and under such circumstances that if any force or violence had resulted from such gathering, they would have been guilty of a riot. In other words, the jury found that , the defendants had committed only a part of the acts essential to the proof of the commission of the crime charged, and that the principal element thereof consisting of force or violence was wanting.
5. It is a well-settled principle of law that nothing can be added to a special verdict by inference; and, when it omits to set forth any fact essential to constitute the crime charged, it amounts to an acquittal. State v. Belk, 76 N. C. 10.
6. The charge against defendants was for riot; and, if the verdict was under Section 1413, B. & C. Comp., it was bound to be either guilty or not guilty, importing either a conviction or acquittal of the crime charged (Wells v. State, 116 Ga. 87: 42 S. E. 390), while if, under Section 1412 of the Code, the special facts found are true, they must be sufficient to establish the guilt of the accused of the crime charged, in the absence of which *141the same result must follow as in a failure to find the defendant guilty under a general verdict. In State v. Steeves, 29 Or. 85, 107 (43 Pac. 947, 953), in discussing the law applicable to the facts in that case, where the defendant had been indicted and tried for murder, but found guilty of manslaughter, Mr. Justice Moore says: “The defendant, having been arraigned, entered a plea of not guilty to the indictment, and the moment the jury were sworn to try him, jeopardy attached, and, had the jury been discharged without his consent, except upon a failure to agree upon a verdict, he would stand acquitted before the law.”
Again, it has been held, and we think wisely, that a consent on the part of defendant to proceedings of such vital importance would not constitute a waiver of defendant’s legal rights. See ex parte Tice, 32 Or. 179 (49 Pac. 1038); State v. Walton, 50 Or. 142, 149 (91 Pac. 490: 13 L. R. A. (N. S.), 811). In the case under consideration the jury was not only sworn to try, and did try, the cause, but submitted a verdict for what it assumed was another offense, and was discharged. It can make no difference that an acquittal of the crime charged was not adverted to in the verdict, and that there was no such offense as that of which defendants were found guilty, for the manifest intention of the jury was to acquit of the crime charged and to find the defendants guilty of another and distinct supposed offense, but which other assumed crime had no legal status. If, then, the acquittal of the higher offense charged, in cases like State v. Steeves, where more than one verdict may be found, will preclude a retrial on reversal, much stronger must be the reason for holding that a verdict, although intended to find the accused guilty of something, finds them guilty of nothing; that is to say, guilty of acts which, standing alone, do not constitute a crime under the law.
The judgment of the circuit court should be reversed, and one entered, dischargin'g the defendants.
Reversed: Defendants Discharged.