99 P. 428 | Or. | 1909
Opinion by
“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,
“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.”
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.