| Me. | Jul 1, 1852
It was contended at the trial by the defendants that, to prove a riot, it was necessary for the government to show that three persons were engaged in some illegal physical act; and the counsel have now argued as if this question was raised upon the exceptions. But what counsel contended for, is no ground for exceptions. The Court must first be requested to charge upon the point made, and if the request is refused, exceptions may be taken. The instructions which the Judge gave to the jury, and the legal effect of them, are the only questions which can now be raised upon these exceptions. The jury were instructed that if two were engaged in the illegal act, and the third was there, aiding and abetting by his presence, it was sufficient. It is insisted that by the common law and by statute, a riot cannot be committed unless three persons were engaged in it, and doing some unlawful act. The Court are not satisfied that such is the rule at common law. By the common law, where three persons are together for a common, unlawful purpose, and acting in concert, it is not necessary, to constitute a riot, that all should do some physical act. It is enough, if two, or perhaps one, does the unlawful deed, if the other be aiding, assisting and abetting. He becomes an actor by aiding and abetting. Suppose one actually pulls down a building, while the other two stand
But it is argued that by the R. S. chap. 159, sect. 3, it is required that at least three persons should be present, committing some unlawful act, to constitute the offence, and that a person cannot be considered as committing an unlawful act, who does nothing to accomplish it. But if two persons pull down a house, and a third stands by to protect them, he commits an unlawful act. The common law defines what an unlawful act is. By that, all who aid, assist and abet, are held to do what the others do.
But it is said that it does not follow that the third person was aiding and abetting, because he was present.
Whether the third person was aiding and abetting, was a question for the jury, and it was fully submitted to them by the instruction. Exceptions overruled.