27 F. Cas. 477 | U.S. Circuit Court for the District of District of Columbia | 1835
refused to give the fifth instruction prayed by the defendant’s counsel, because, although the assault on Madden should be the only evidence of his being concerned in the riot (if it was one) and although he should have been punished for that assault, yet if he was one of the rioters, he is jointly guilty with all the rest of the defendants, of all the other outrages committed by them in that riot; and the punishment for the assault will be considered (if he should be found guilty of the riot,) when the
Although an assault may be given in evidence upon a prosecution for a riot, yet it is not the only evidence necessary to support, it. The true criterion of identity of cause of action, or of prosecution, is, that the same evidence will support both; the offences are quite distinct and different. An assault is not necessary to constitute a riot; nor are the ingredients of a riot necessary to constitute an assault. 2 Hawk. c. 85; 1 Chitty, C. L. 452.
After a verdict against the defendants, their counsel moved in arrest of judgment, because forty-eight jurors were not summoned by the marshal, and twenty-three grand jurors drawn, by ballot, by the clerk, according to the provisions of the Maryland Act of 1797, e.87, § 8; and because one of the petit jurors who sat upon the trial, had been summoned and served as a petit juror at the next preceding term, contrary to the 3d section of the same act.
The CouRT, however, overruled the motion, being of opinion that the eighth section of the Act of 1797, c. 87, applied only to the County Court of Maryland ; as this Court had decided at the very commencement of its practice, when the following order was entered upon its minutes. “Friday, July 10, 1801. Ordered, by the Court, that twenty-four grand jurors, and thirty-six petit jurors be summoned to the next term : ” and such has been the practice ever since that time.
In Burr’s Trial, p. 37, it is said that any one, under a criminal charge, may, before the grand jury is sworn, except to an irregularity in summoning them; from which an inference is drawn, that after they are sworn the exception is too late.
The third section of the Act of 1797, c. 87, “ that no person shall be summoned as a juror, by any sheriff or coroner of this State, to two general, or county courts successively,” is for the ease of jurors, and merely directory tojhe summoning officer. It constitutes no valid exception to the qualification of the juror; and if it did, it is too late to take it after the juror is sworn.
Motion overruled; and judgment upon the verdict.