#### THE STATE vs. WILLIAM STALCUP et al.

In an indictment for a riot, it is necessary to aver, and on the trial, to prove a previous unlawful assembly: And, hence, if the assembly were lawful, as, upon summons, to assist an officer in the execution of lawful process, the subsequent illegal conduct of the persons so assembled, will not make them rioters.

This was an indictment containing two counts, against the defendants, William Stalcup and three others. The first count, charged them with a riot, in unlawfully assembling and beating one Morrison, the prosecutor; and the second, with a common assault and battery upon the said Morrison.

Upon the trial at Macon, on the last circuit, before his honor Judge Hall, it appeared that a state’s warrant had been issued by a magistrate of Macon county, directed to one of the defendants, a constable of said county, commanding him to arrest the body of the prosecutor, Morrison, for a forcible tresspass. By virtue of this warrant, the constable, accompanied by the other defendants and some other persons, all of whom had been summoned by him to aid in executing the process, went to the place where the prosecutor was at work, and arrested and tied him. Evidence was then offered to show that the defendants, under color of the said process, had acted oppressively towards the prosecutor, and had unnecessarily abused his person. The counsel for the defendants, insisted, that although the evidence might warrant the belief that the defendants had so oppressed and abused the prosecutor, yet that they could not be convicted on the first count of the indictment, and asked the court so to instruct the jury. The court declined giving the instruction prayed, but, on the contrary, informed the jury, after giving them the legal definition of a riot, that if they believed, from the evidence, that the defendants were guilty of such oppression and abuse, they might convict them upon both counts.

The jury returned a verdict of guilty upon both counts, and, after an ineffectual motion for a new trial, the defendants appealed.

The Attorney General for the State

referred to 2 Chit. *31 Crim. Law, 488, and note thereto — Hawkins, Book 2, 65 — Branch v. Bradley, 2 Hay. Rep. 53 — Hobart’s Rep. 62,264.

No counsel appeared for the defendants in this court.

Daniel, Judge.

The case states that the defendants assembled, in consequence of the summons of the officer to aid him in the execution of a state’s warrant, isssued against the prosecutor, for a forcible trespass. Such an assembly cannot be considered an unlawful assembly. But, wé think, an unlawful assembly is a constituent and a necessary part of the offence of a riot, It must precede the unlawful act which consummates the offence of riot. Hawkins accordingly defines a riot to be a tumultuous disturbance of the peace, by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against all who shall oppose them, and afterwards putting the design into execution, in a terrific and violent manner, whether the object in question be lawful or otherwise. An indictment for a riot, always avers that the defendants unlawfully assembled. And this averment must (we think) be proved on the trial, as well as the subsequent riotous acts of the defendants, before they can be convicted of a riot. Rex v. Birt. 5 Carr. & P. 154. Archb. Crim. L. 446, (5 edition.)

The judgment therefore must be set aside, and a new trial awarded, because the defendants have been improperly convicted on the first count in the indictment.

Per Curiam. Judgment reversed.