Riot-Rout-Affray.

fight a duel with and against him, the said C. D., which said written challenge is as follows, that is to say: [here set out the challenge, with the proper innuendoes.]

6. Fighting a duel.
day of

in the year

That A. B., on the at said county, did unlawfully and voluntarily engage in and fight a duel with one C. D., then and there being, with deadly weapons, to-wit, with pistols, then and there loaded with gunpowder and leaden balls, and that death did not ensue from then and there fighting the said duel.

Verbal challenge.—The giving of a verbal challenge to fight duel is an indictable offense. 6 Blackf. 20.

SEC. 3. Any person leaving this state to fight a duel, or to be concerned as a second therein, or in any other capacity out of the state, is liable to be punished in the county of his residence in the state, in the same manner as if the duel had been contemplated and fought, and the results thereof had terminated therein. 2 R. S. 373.

SEC. 37. RIOT-ROUT-AFFRAY.

Riot.

SEC. 4. If three or more persons shall do an act in a violent and tumultuous manner, they shall be deemed guilty of a riot, and, upon conviction thereof, shall be fined not exceeding five hundred dollars each, to which may be added imprisonment in the county jail for any time not exceeding three months. 2 R. S. 458.

year

CHARGES.

1. Riot, where the gist is assault and battery. That A. B., C. D., and E. F., on the day of, in the at said county, unlawfully and riotously assembled and gathered themselves together, in a violent and tumultuous manner, and then and there, in and upon G. H., unlawfully and riotously, and in a violent and tumultuous manner, did make an assault, and him, the said G. H., did then and there unlawfully and riotously beat and wound. Bicknell's Crim. Pr. 393.

Riot-Rout-Affray.

2. Ordinary riot.

That A. B., C. D., and E. F., on the

day of in the year at said county, together with other persons, whose names are to the grand jurors unknown, unlawfully, riotously, and in a violent and tumultuous manner, assembled and gathered together, with clubs and other weapons, and then and unlawfully and riotously, and in a violent and tumultuous manner, made a great noise, tumult, and disturbance, and then and there continued the same for an hour or more. Ibid.

Act need not be unlawful.—Where, on the trial of a criminal action, it is shown that other persons, with the defendant, were parties to the crime, though they are not on trial, their acts, doings, and sayings may be given in evidence against their accomplice, who is on trial. 42 Ind. 475.

Affidavit held good. The affidavit states that on, etc., at, etc., "three persons and more, to-wit," etc., naming twenty-one, “did, in a violent, riotous, and tumultuous manner, unlawfully break open the doors of the house of, and destroy certain," etc., "the property of this affiant." The information follows the affidavit. Held, sufficient. 11 Ind. 287.

Charivari-Custom.-Where, by previous concert, three or more persons, by their voices or a trumpet, make a great noise tumultuously, in the night time, in the vicinity and within the hearing of persons not participating with them, the act, under the R. S. 1843, is a riot.

The fact that the witnesses who heard the noise were not alarmed by it, does not change the nature of the offense.

Neither does the circumstance that those who made the noise were in a good humor at the time.

A defendant indicted for a crime can not exempt himself from punishment by showing that it was the custom of the country to do the act which constituted the crime. 4 Ind. 114.

Sufficiency of charge.-An indictment for a riot, after describing the time and place of the commission of the offense presented, charged that A. B., C. D., and E. F. riotously, routously, and unlawfully gathered and assembled together, and then and there did riotously, etc., make a great noise, tumult, and disturbance, to the terror of the citizens, etc., contrary, etc. Held, that the words were sufficiently descriptive of a riot. 4 Ind. 589.

Same-Making great noise.—An indictment for a riot stated that the defendants, on, etc., with force and arms, did unlawfully, riot

Riot-Rout-Affray.

ously, etc., assemble and gather themselves together to disturb the peace of the state, and, being so assembled, did then and there make a great noise, disturbance, riot, and tumult, and then and there unlawfully, riotously, etc., remained and continued together making such noise, riot, tumult, and disturbance for the space, etc., and then and there fought through and with each other, etc. Held, that the indictment was sufficient. 5 Blackf. 365.

An indictment against A., for that he, together with other persons, to the jurors unknown, committed the offense, is good. Turpin v. The State, 4 Blackf. 72, note (1), citing 3 Salk. 317.

Witness. In a prosecution for riot, one defendant, being on his trial separately, may introduce his co-defendants as witnesses in his behalf. 15 Ind. 249.

Bar to future prosecutions—Assault and battery.—Where an assault and battery is not the gravamen of, but merely an incident occurring at a riot, a final judgment in the prosecution for one of the offenses may not be a bar to a prosecution for the other. 13 Ind. 540.

Three persons necessary to make riot.-The information in this case charges several persons, naming them all, with a riot. Upon the trial of the appellant, the court instructed the jury that if the defendant and more than one other person entered the house, etc., he must be found guilty. Held, that this was error. 10 Ind. 459.

R. S. of 1843-Jurisdiction-Justice of the peace.-Justices of the peace, by the R. S. 1843, have not jurisdiction of riots. 5 Ind. 195.

Docket fee of prosecuting attorney.-Indictment against several persons for a riot. The defendants, on a joint trial, were found guilty, and separately fined by the jury. Judgment accordingly. Held, that the prosecuting attorney was entitled to a docket fee against each of the defendants. 5 Blackf. 6.

Number of persons to make a riot.—Indictment against three persons for a riot. Plea, not guilty. Verdict of guilty as to one, and of not guilty as to the others. Held, that, upon this verdict, a judgment could not be rendered against the defendant found guilty. Aliter, if the indictment had been against the defendants, together with others whose names were unknown. 1 Russ. on Crimes, 267; Reg. v. Soley et al., 2 Salk. 594; Rex v. Scott et al., 3 Burr. 1262; 2 Chitt. C. L. 488 (1); 4 Blackf. 72.

Same.-Indictment against eight persons for an unlawful assembly. Five of the defendants appeared and pleaded not guilty; and two of these five were found guilty, and three not guilty. Held,

Riot-Rout-Affray.

that judgment should be entered against the two found guilty; but that they must have been discharged, had all the others indicted been tried and acquitted. 3 Blackf. 209.

Aiding and abetting.—If a person at some distance when a riot is done come up immediately afterward, and do violence upon the same object, he is not guilty of a riot. 9 Ind. 565.

The defendant may show that he has already been convicted of the same riot before a justice of the peace. 13 Ind. 360.

Rout.

SEC. 5. If three or more persons shall meet together to do an unlawful act upon a common cause, and shall make advances toward the commission thereof, they shall be deemed guilty of a rout, and, upon conviction, shall be fined not exceeding one hundred dollars, or may be imprisoned in the county jail not exceeding sixty days. 2 R. S. 458.

CHARGE.

day of

in the

That A. B., C. D., and E. F., on the year, at said county, did unlawfully intend, and routously assemble and meet together to do an unlawful act upon a common cause, to-wit, [set out the unlawful act]; and being then and there. so assembled and met together, did then unlawfully, riotously, and routously agree with each other to [here set out the act again]; and did then and there unlawfully, riotously, and routously make divers movements, advances, and great preparation toward the commission thereof, to wit, did then and there [set out what was done by preparation or movements].

Definition.--Rout may be defined to be an unlawful assembly which has performed some act toward the commission of a riot. 2 Bish. Crim. Law, § 1123.

Same. It is a disturbance of the peace by persons assembling with an intention of doing a thing which, if it will be executed, will make them riotors, and actually making a motion toward the execution thereof. But, by some books, the notion of a rout is confined to such assemblies only as are occasioned by some grievance common to all the company; as the inclosure of land on which they all claim a right of common, etc. 1 Hawk. P. C. 516, $ 8, Curw. ed.

Rout included in riot.-A rout is simply an attempt at riot, and

Riot-Rout-Affray.

is, therefore, included in the latter offense. See 2 Whart. Crim. Law, § 2474.

Affray.

SEC. 6. If two or more persons, by agreement, fight in any public place, the persons so offending, shall be deemed guilty of an affray; be fined not exceeding twenty dollars, or imprisoned not exceeding five days each. 2 R. S. 459.

at said county, in a certain public street and highway there situate, unlawfully, by agreement, fought each other, and then and there and thereby made an affray. Bicknell's Crim. Pr. 395.

Highway--Public place.-A highway is not necessarily a "public place," within the meaning of the statute defining an affray. 29 Ind. 206.

Evidence-Presumption.-Indictment against two persons for an affray. The only proof was that the defendants were seen in close combat lying on the ground. Held, that this evidence was not sufficient to support the indictment.

The law does not presume, under those circumstances, that the parties fought by agreement. 1 Blackf. 377.

Former conviction-Assault and battery.-A person, after having been convicted of an affray, before a court of competent jurisdiction, can not, for the same act that gave rise to such prosecution, be convicted of an assault and battery; and this rule applies, although the affidavit upon which the conviction for the affray was had may have been defective. 40 Ind. 18.

Same. Where the state prosecutes and convicts for the affray, she assumes that the act or acts committed constituted that offense, and having had the conviction, she can not be heard to say that the same act or acts constituted another and different misdemeanor, and obtain another conviction therefor. Ibid.

An information for an affray must state not only that the defendants fought in a public place, but whom or what they fought. 8 Ind. 182.

Venue. In an indictment for an affray, it is sufficient to allege the county where the offense was committed, without specifying the township. 4 Ind. 604.