that they lived in different parts of the neighborhood); that there had been an infair at the house of one Jacob Wise, in said Chicago, whose house was situated on or near the public highway; that the defendants, with one exception, were young men, one of whom went to a neighboring house and borrowed a horn, with which they marched back and forth along the highway, sometimes blowing said horn and singing songs, but not vulgar ones, before the house of said Wise, and north and south of it, and hallooed so that they could be heard near a mile distant, as certain persons, not witnesses, had informed said Wise; and that they continued on the ground, thus acting, till one or two o'clock in the morning. But said witnesses all concurred in stating that the defendants were all in good humor, and used no violence further than above set forth; that they had no guns or weapons of any kind, made no threats or attempts at force of any kind; that the witnesses were not in the least alarmed, and feared no danger of any kind, and were in no way disturbed, except that Jacob Wise stated that he went to bed about nine o'clock, and was awakened occasionally by the hallooing in the road, and that a pedler, who put up at the house of said Wise that night (it being a public house), inquired if there were a lock and key to the stable in which his horses were kept; and that said Wise, at the instance of said pedler, locked the stable;" which was all the testimony given in the cause.

The question is, whether, upon the foregoing evidence, the jury were authorized to find the defendants guilty of a riot.

66

The R. S. of 1843 enact, p. 973, that if three or more persons shall actually do an unlawful act of violence, either with or without a common cause or quarrel, or even do a lawful act in a violent and tumultuous manner, they shall be deemed guilty of a riot." The R. S. of 1852, vol. 2, p. 425, thus define a riot: "If three or more persons shall do an act in a violent and tumultuous manner, they shall be deemed guilty of a riot."

A great noise in the night-time, made by the human voice or by blowing a trumpet, is a nuisance to those near whom it is made. The making of such a noise, therefore, in the vicinity of inhabitants, is an unlawful act; and, if made by three or more persons in concert, is, by the statute of 1843, a riot. All these facts exist in the present case. Here was a great noise, heard a mile, in the night-time, made with human voices and a trumpet, in the vicinity of inhabitants. The requirements of the statute for the making out of the offence are filled. The noise was also made tumultuously. The act itself involves tumultuousness of manner in its performance. But it is said, here was no alarm or fear. The statute defining the offence says nothing about alarm or fear. In this case, however, it was only the witnesses who were not alarmed. Others within the distance of the mile in which the noise was heard, and who were not present to observe the actual condition of things, may have been, and doubtless were, alarmed; and the pedler was afraid his horses would be stolen.

It is said the rioters were in good humor. Very likely, as they were permitted to carry on their operations without interruption. But with what motive were they performing these good-humored acts? Not, certainly, for the gratification of Wise and his family. They were giving them what is called a charivari, which Webster defines and explains as follows: "A mock serenade of discordant music, kettles, tin-pans, etc., designed to annoy and insult. It was at first directed against widows who married a second time, at an advanced age, but is now extended to other occasions of nocturnal annoyance and insult."

Again, it is urged that these defendants were but acting in accordance with the custom of the country. But a custom of violating the criminal laws will not exempt such violation from punishment. In the case of The State of Pennsylvania v. Lewis, et al., Add. R. 279, it appeared that on the 5th of November, 1795, there was a wedding at the house of one John Weston. The defendants in said case were there without invitation, were civilly treated, and, in the evening, when dancing commenced, began a disturbance in which, during the evening, Weston was so seriously injured that, on the third day after, he died. On the trial of the indictment against said defendants, Campbell, Pentecost, and Brackenridge, in their argument, said, "These men did nothing more than an usual frolic, according to the custom and manners of this country. There was no intention of hurt, no design of mischief, in which the malice, which is a necessary ingredient of murder, consists." But the argument did not prevail; and the Court said, "If appearance of sport will exclude the presumption of malice, sport will always be affected to cover a crime." The defendants were convicted of murder in the second degree.

The case before us we regard as a plain, but not an aggravated, one of riot, and the judgment below must be affirmed. The defendants were fined but three dollars each. The judgment is affirmed with costs.

BROOKS, J.

VICK v. STATE.

COURT OF CRIMINAL APPEALS OF TEXAS. 1902.

[Reported 69 Southwestern Rep. 156]

Appellant was prosecuted under an information charging the theft of a load of wood. Upon conviction, his punishment was assessed at a fine of $5 and one hour's confinement in the county jail.

Appellant also complains that the court erred in not charging the jury as to the custom of people to go into the pastures and take wood from parties owning the pastures. There is no law authorizing thieving by custom. This testimony was not admissible.

The judgment is affirmed.

1 Only so much of the case as discusses the defence of custom is given. - En.

HENDRY v. STATE.

SUPREME COURT OF FLORIDA. 1897.

[Reported 39 Fla. 235.]

MABRY, J. The plaintiff in error was indicted, tried and convicted of the larceny of cows, the property of one Adam Mercer, and sentenced to the penitentiary for one year. Two assignments of error are insisted on for a reversal of the judgment; the first being the rejection of certain testimony sought to be elicited by plaintiff in error from the witness, Ziba King, and the second, relating to the sufficiency of the evidence to sustain the verdict.

Ziba King, testifying for the prosecution, stated that he ran a butcher shop at Punta Gorda, and that some time in May, 1894, defendant delivered to him at his butcher shop in DeSoto county about nineteen head of cattle, and among them were six or seven in the mark and brand of Adam Mercer; that witness knew the mark and brand of Mercer, and defendant stated at the time of the delivery of the cattle that he was authorized to sell them. Witness bought the cattle from defendant and paid him for seventeen head, most of which were butchered. On cross-examination of this witness, after stating that he had been extensively engaged in the cattle business for twenty-five years, and was familiar with the rules and customs of stock men in DeSoto county, the following question was propounded, viz.: You have stated that you have been extensively engaged in the cattle business in this county for twenty-five years, and that you are familiar with the rules and customs of stock men, please state whether or not it has been the custom among cattle owners of this county, during the time you have been engaged in the cattle business, to drive to market and sell the cattle of their neighbors where they were on friendly terms with each other, without any special authority for so doing, and with the understanding that they would be paid for by the men who drove them such price as they could obtain for them in the market, with or without a reasonable compensation for driving them?" This question was objected to by the State Attorney and excluded by the court, and we are of the opinion that there was no error in the ruling. The question was on cross-examination of the state's first witness, and was not in cross of any testimony brought out on direct examination by the state, but the objection was not based on this ground, and it may be said to have been waived. The charge against the defendant was for the larceny of the animals described in the indictment, and this included not only a wrongful taking of the property of another, but also that it was done animo furandi, or with the intent to steal. There can, of course, be no legal custom to justify one man in stealing the property of another, as such a custom would be bad and contrary to law. Commonwealth v. Doane, 1 Cushing, 5. We

do not understand that this legal proposition is questioned by counsel for plaintiff in error, but it is insisted that the custom proposed to be shown, if it existed, was proper as bearing upon the intent with which the accused took the property, and that it would tend to show he did not take it with a felonious purpose. It had not been shown that the accused was a cattle owner residing in DeSoto county on friendly terms with the owner of the cattle alleged to have been stolen, or was in any way entitled to avail himself of the custom sought to be shown. Subsequent testimony of the accused himself showed that he was not a cattle owner, and was not in a situation to avail himself of such a custom, if it did exist. If it had been shown, or offered to be shown, that the accused was a cattle owner, residing in DeSoto county, on friendly terms with the owner of the cattle in question, and that, under such a custom offered to be shown, he had driven the cattle to market and had sold them, but with the intention of accounting to the owner for the purchase money, we do not intimate that the evidence of such a custom would be improper. It might become pertinent and material in such a case, but the accused in the present case was not shown to be a stock owner, or in any proper way connected with such a custom, if it existed, and there was no error in rejecting the proposed testimony.

We have entertained some misgivings as to the sufficiency of the evidence to sustain the verdict, but after a careful examination have concluded that it is of such a nature, when viewed in an unfavorable light against the accused, as to sustain the conviction. The credibility of witnesses, in case of conflict, we leave to the settlement of the jury; nor can we say how much credence must be given to the evidence of the accused where there is conflict or improbability of statement. It is true, as contended by counsel for plaintiff in error, that to constitute larceny, the taking must be with a felonious intent at the time, and whether such intent existed is a question of fact to be determined by the jury from all the facts of the case. The testimony before us shows beyond dispute that the accused gathered the cattle of Adam Mercer and drove them some thirty miles to a market and sold them for money which he never accounted to the owner for, or offered to make any account, and under all the facts of the case we are of the opinion that the question of whether the accused took the cattle with felonious purpose of converting them to his own use and profit, was proper for the jury to settle, and as they determined it adversely to him, the judgment will be affirmed.

CHAPTER VI.

PARTIES IN CRIME.

SECTION I.

Who are Parties.

ANONYMOUS.

OLD BAILEY. 1723.

[Reported 8 Mod. 165.]

Ar the sessions in the Old Bailey held there on the ninth day of April, in the ninth year of George the First, where some of the judges of the Common Pleas were present, this case happened:

Two men were beating another man in the street in the night-time. A stranger passing by at the same time said, "I am ashamed to see two men beat one." Thereupon one of those who was beating the other ran to the stranger in a furious manner, and with a knife which he held in his right hand, gave him a deep wound, of which he died soon after. And now both the others were indicted as principals for the said murder.

But the Judges were of opinion that, because it did not appear that one of them intended any injury to the person killed, he could not be guilty of his death, either as principal or accessory. It is true, they were both doing an unlawful act, but the death of the party did not ensue upon that act.

Ar the Old Bailey, in June Session 1785, Daniel Richardson and Samuel Greenow were indicted before Mr. JUSTICE BULLER for a highway robbery on John Billings.

It appeared in evidence that the two prisoners accosted the prosecutor as he was walking along the street, by asking him in a peremptory manner what money he had in his pocket; that upon his replying that he had only two-pence half-penny one of the prisoners immediately said to the other, "If he really has no more do not take that," and turned as if with an intention to go away; but the other prisoner stopped the prosecutor, and robbed him of the two-pence half-penny, which was all the money he had about him. But the prosecutor could not ascertain which of them it was that had used this expression, nor which of them had taken the half-pence from his pocket.