13 Ind. 540 | Ind. | 1859
This was a prosecution for a riot. Trial by the Court; finding of guilty, and judgment, over a motion for a new trial.
The evidence is in the record, and, upon the part of the state, was sufficient to authorize the finding; but the witness, without objection, stated that the defendants had
We think the true rule, in prosecutions for offenses of this character, is, that where the gravamen of the riot consists in the commission of an assault and battery, then, a conviction for that assault, &c., would be a bar to a prosecution for a riot; but where the commission of an assault and battery was merely incidental to the riot, then a conviction for the one would not bar a prosecution for the other; as in an instance where several should riotously attempt to tear down a house, and, in that attempt, the owner of the house, in the defense thereof, should be assaulted, &c. Here the purposed and main offense would be, the demolition of the house, but at the same time the parties might, in the perpetration of that offense, commit other unlawful acts for which a prosecution could be maintained, as well as for the riot.
The question would be, is the one act included in the other?
In the case at bar, although the Court below held it was not the same offense, we are informed it was all the same act, and the evidence shows the gravamen of the riot was the assault and battery. The judgment must, therefore, be reversed.
The judgment is reversed. Cause remanded, &c.