are guilty of a riot. Indeed, it has been held that a trespass to property in the presence of a person in actual possession, though there is no actual force, amounts to a riot. The disturbance of the peace by exciting terror, is the gist of offense. To disturb another in the enjoyment of his lawful right is a trespass, which, if done by three or more persons unlawfully combined, with noise and tumult, is a riot; as the disturbance of a public meeting or making a great noise and disturbance at a theater for the purpose of breaking up the performance, though without offering personal violence to any one; or even going in the night upon a man's premises and shaving his horse's tail, if it be done with so much noise and of such a character as to rouse the proprietor and alarm his family. Violent threatening and forcible methods of enforcing rights, whether public or private, are not lawful." Testimony of a general feeling of alarm and disquiet has been held properly received to show that the defendant disturbed the public peace.*1 § 3128. Evidence in general.-What is said and done by persons during the time they are engaged in a riot constitutes the res gestae, and it is, of course, competent as a rule to prove all that is said and done. If the violent or disorderly conduct of the rioters results in injury to property, and the act of causing the injury is committed during the riot, the state may prove the act which caused the injury. This evidence is not admitted for the purpose of establishing another offense, but because it is a part of the occurrence which constitutes the riot and tends to show that the conduct of the defendants was riotous and violent. It has been held that upon a trial for a riot, evidence might be received to show that the defendants were members of the same secret society. In an indictment for a riot and breaking into an outhouse, proof that the house was within the curtilage, and that the door was broken in a riotous manner without any demand or refusal to admit has been held competent testimony under a count for a riot, May Cr. Law, § 166; see also, State v. Calder, 2 McCord (S. Car.) 462; State v. Jackson, 1 Speer (S. Car.) 13; Bell v. Mallory, 61 Ill. 167; Fisher v. State, 78 Ga. 258; State v. Fisher, 1 Dev. (N. Car.) 504; State v. Renton, 15 N. H. 169; State v. Brooks, 1 Hill (S. Car.) 362; State v. Townsend, 2 Harr. (Del.) 543; Commonwealth v. Runnels, 10 Mass. 518; State v. Brazil, Rice (S. Car.) 257; State v. Alexander, 7 Rich. L. (S. Car.) 5. 11 People v. O'Loughlin, 3 Utah 133, 1 Pac. 653. 42 Gallaher v. State, 101 Ind. 411; see also, Rex v. Hunt, 3 B. & Ald. 566. 43 State v. Johnson, 43 S. Car. 123, 20 S. E. 998. 47 46 and admissible in aggravation of the offense, although there is no count charging a breaking into a house, within the curtilage." It has been held, however, that it may not be shown that the defendant had been engaged in riotous proceedings in former years." That is, evidence of riotous assemblage in former years is incompetent, either as tending to rebut the defense that the assemblage in question was of a peaceful character or as tending in the first instance to characterize the assemblage in question. Where defendants' witnesses had testified that they were of the party concerned in the riot, they were not allowed to give evidence of their intentions in meeting. In an indictment for a riot and forcible trespass in entering a man's dwelling-house, he being in the actual possession therof, and taking from his possession slaves and other personal property, it has been held that it is unnecessary to show that the prosecutor had the right to the property or the right to the possession, but whether he had in fact the possession thereof at the time when that possession was charged to have been invaded with such lawless violence, and any evidence tending to establish that possession is admissible. And under an indictment for riot, whereby a mill-dam was destroyed, it is only necessary to prove the possession of the prosecutor. It has been held that an allegation that some of the rioters are unknown need not be proved 50 and even where the act charged to have been violently and tumultuously done was an attempt to commit an assault it is not necessary to allege or prove that the defendants had the present ability to inflict an injury on the prosecuting witness.51 And it has been held that under an indictment for a riot a conviction for an assault, an unlawful assembly, or a rout may be had.53 And a conviction for assault and battery has been held, in other jurisdictions, to be no bar to a prosecution for a riot. It has been said, however, that where the 54 * Douglass V. State, 6 Yerg. (Tenn.) 525. 45 State v. Renton, 15 N. H. 169; Commonwealth v. Campbell, 7 Allen (Mass.) 541, 83 Am. Dec. 705. 40 State v. Renton, 15 N. H. 169; see also, Reg. v. Mailloux, 16 New Br. 493, 499. 47 United States v. Dunn, 1 Cranch (U. S.) 165. 49 52 50 State v. Blair, 13 Rich. L. (S. Car.) 93. 51 State v. Acra, 2 Ind. App. 384, 28 N. E. 570. 52 Shouse v. Commonwealth, 5 Pa. St. 83; Rex v. Hemings, 2 Show. 93; but see, Ferguson v. People, 90 Ill. 510. 53 State v. Sumner, 2 Speers L. (S. Car.) 599, 42 Am. Dec. 387; see also, 48 State v. Bennett, 4 Dev. & B. (N. Rex v. Cox, 4 Car. & P. 538, 19 E. C. Car.) 43. 4° State v. Wilson, 23 N. C. 32. L. 638. gravamen of a riot consisted of an assault and battery, a conviction for that offense will bar a prosecution for riot, but, where the assault and battery was merely incidental to the riot, then a conviction for the former offense will not necessarily bar a prosecution for the latter.55 see also, Ferguson v. People, 90 Ill. 510; State v. Russell, 45 N. H. 83; but compare, State v. Ham, 54 Me. 194; Commonwealth v. Hall, 142 Mass. 454, 8 N. E. 324; State v. 55 Wininger v. State, 13 Ind. 540; Greenwood v. State, 64 Ind. 250. VOL. 4 ELLIOTT Ev.-29 3131. Presumptions-Fear and other 3137. Evidence of other offenses. presumptions. 3132. Intent. 3133. Identity of accused. 3134. Res gestae. 3138. Circumstantial evidence. § 3129. Definition and elements.-Robbery may be defined in a general way as a felonious taking of property from the person of another by force. The force necessary may, however, be either actual or, in a sense, constructive. Thus, robbery may be accomplished, in most jurisdictions, by threats or putting the person robbed in fear and overcoming his will. And it is defined in substance by many statutes as the felonious taking of personal property from the person or in the presence of another, against his will, by means of force or fear.3 The offense is distinguished from larceny largely by the elements of force or putting in fear, and evidence of the mere snatching of prop 1 See 4 Blackstone Comm. 242; Harris Cr. Law (Forces' ed.) 177; 2 Abbott L. Dict. 436; United States v. Jones, 3 Wash. (U. S.) 209; Rex v. Donolly, 2 East P. C., chap. 16, § 129, cited in, Breckinridge v. Commonwealth, 97 Ky. 267, 30 S. W. 643, and State v. Brown, 113 N. Car. 645, 18 S. E. 51. 2 Rains v. State, 137 Ind. 83, 36 N. E. 532; Duffy v. State, 154 Ind. 250, 56 N. E. 209; Arnold v. State, 52 Ind. 281, 21 Am. R. 175; Keeton v. State, 70 Ark. 163, 66 S. W. 645; 3 Greenleaf Ev., § 231; Clary v. State, 33 Ark. 561; State v. Howerton, 58 Mo. 581; Dill v. State, 6 Tex. App. 113; Foster's Cr. Law 128, 2 East P. C. 711. 3 See, People v. Modina, (Cal.) 79 Pac. 842; People v. Foley, 9 N. Y. St. 34; Rains v. State, 137 Ind. 83, 36 N. E. 532; McDaniel v. State, 16 Miss. 401; State v. Lawler, 130 Mo. 366, 32 S. W. 979, 51 Am. St. 575; State v. Davis, (Utah) 76 Pac. 705. "The distinction of robbery from other kinds of larceny," says Mr. Harris, "is, that in the former case there must have been a felonious erty from another without violence or putting in fear tends to prove larceny rather than robbery." So, obtaining money by extortion, false pretenses or other trick, unaccompanied by violence or putting in fear, will not amount to robbery. But snatching a watch or purse from another with such violence as to break a chain by which it is secured,' or snatching an earring with such force as to make the ear bleed has been held sufficient force or violence to constitute robbery so far as that essential element is concerned. So, where the defendant had bound the prosecuting witness and put her in fear so that information as to the place where she kept her money and watch was extorted from her, and the defendant, leaving her bound, took the property, this was held sufficient to support a conviction for robbery, notwithstanding the property was not attached to her person and the defendant had to go into another room to get it." taking from the person, or in the presence of another, accompanied either by violence or a putting in fear." Harris Cr. Law (Forces' ed.) 212. See, Long v. State, 12 Ga. 293. McCloskey v. People, 5 Park Cr. Cas. (N. Y.) 299; People v. Hall, 6 Park Cr. Cas. (N. Y.) 642; People v. McGinty, 24 Hun (N. Y.) 62; Bonsall v. State, 35 Ind. 460; see also, Mahoney v. People, 5 Thomp. & C. (N. Y.) 329; Norris' Case, 6 City Hall Rec. (N. Y.) 86; Fanning v. State, 66 Ga. 167; Spencer v. State, 106 Ga. 692, 32 S. E. 849; but see, Williams v. Commonwealth, 20 Ky. L. R. 1850, 50 S. W. 240; Snyder v. Commonwealth, 21 Ky. L. R. 1538, 55 S. W. 679. Perkins v. State, 65 Ind. 317; Huber v. State, 57 Ind. 341; see also, James v. State, 53 Ala. 380; Shinn v. State, 64 Ind. 13, 31 Am. R. 110; Routt v. State, 61 Ark. 594, 597; Doyle v. State, 77 Ga. 513; State v. Deal, 64 N. Car. 270, 276. Where the owner of the property was drunk and there was no violence or putting in fear, it was held no robbery in, Hall v. People, 171 Ill. 540, 49 N. E. 495. 'Smith v. State, 117 Ga. 320, 43 S. E. 736, 97 Am. St. 165; Rex v. Mason, 2 Leach C. C. 548; State v. Broderick, 59 Mo. 318; State v. McCune, 5 R. I. 60, 70 Am. Dec. 176, and note; Jones v. Commonwealth, 112 Ky. 689, 66 S. W. 633, 57 L. R. A. 432, and note, 99 Am. St. 330; but compare, Bowlin v. State, (Ark.) 81 S. W. 838. Rex v. Lapier, 1 Leach C. C. 360, 2 East P. C. 557; see also, State v. Perley, 86 Me. 427, 30 Atl. 74; Rex v. Moore, 1 Leach C. C. 354; see for other instances, Seymour v. State, 15 Ind. 288; Hughes' Case, 1 Lewin C. C. 301. 'State v. Calhoun, 72 Iowa 432, 34 N. W. 194, 2 Am. St. 252; see also. 2 Bishop Cr. Law, § 975; Wharton Cr. Law, § 1696; Clements v. State, 84 Ga. 660, 11 So. 505, 20 Am. St. 385; but see, Crews v. State, 3 Coldw. (Tenn.) 350; State v. Freels, 3 Humph. (Tenn.) 228; see generally, Hill v. State, 42 Neb. 503, 60 N. W. 916; Turner v. State, 1 Ohio St. 422. |