Blackwell v. State

• Decision Date: 27 February 1892
• Citation: 18 S.W. 676
• Parties: BLACKWELL v. STATE.
• Court: Texas Court of Appeals

18 S.W. 676

BLACKWELL v. STATE.

Court of Appeals of Texas.

February 27, 1892.

Appeal from Waller county court; A. G. LIPSCOMB, Judge.

Harvey Blackwell was convicted of a riot, and appeals. Reversed.

Reese & Tompkins, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

Appellant was indicted for and convicted of a riot, under article 295 of the Penal Code, which reads: "If the persons unlawfully assembled together do, or attempt to do, any illegal act, all those engaged in such illegal act are guilty of riot." And article 305 of the Penal Code provides that "if any person, by engaging in a riot, shall disturb the inmates of any residence by load and unusual or unseemly noises, or by the discharge of fire-arms in the immediate vicinity of such residence, he shall be punished by a fine of not less than fifty nor more than five hundred dollars. A residence may be either a public or a private house." Article 308 provides that "a person engaged in any riot, whereby an illegal act is committed, shall be deemed guilty of the offense of riot, according to the character and degree of such offense, whether the said illegal act was in fact perpetrated by him, or by those with whom he was participating." Article 309, Pen. Code, provides: "Where the assembly was at first lawful, and the persons so assembled afterwards agreed to join in the commission of an act which would amount to riot if it had been the original purpose of the meeting, all those who do not retire when the change of purpose is known are guilty of riot." Article 311, Pen. Code, reads: "The indictment or information must likewise state the illegal act which was the object of the meeting, or which they proceeded to do, if the assembly was originally lawful." The information in this case charges (omitting the formal parts) that "on the 25th day of May, 1891, in the county of Waller and state of Texas, one Harvey Blackwell * * * did then and there unlawfully engage in a riot with one Fenton Moore, Isaac Huff, Tom Huff, Alfred Eckles, and various other persons, who had assembled at the residence of L. D. Thompson; and he, the said Harvey Blackwell, did then and there, acting together with said Fenton Moore, Isaac Huff, Tom Huff, and Alfred Eckles, and various other persons, disturb the inmates of said L. D. Thompson's residence by the discharge of fire-arms in the immediate vicinity of the said L. D. Thompson's residence, * * * against the peace and dignity of the state." Defendant moved in arrest of judgment, because the information upon which he was tried did not charge an offense known to the penal laws of the state of Texas, because the information did not charge the offense in plain and intelligible words, and because, in charging that defendant "did unlawfully engage in a riot," the information states a legal conclusion only.

Our statute (article 279, Pen. Code) provides: "An unlawful assembly is the meeting of two or more persons, with intent to aid each other, by violence or by any other manner, either to commit an offense, or illegally to deprive any person of any right, or to disturb him in the enjoyment thereof." As we have seen above, in article 295, if any persons unlawfully assemble together to do or attempt to do any illegal act, all those engaged in such illegal act are guilty of riot. In his invaluable work on Criminal Forms, Judge WILLSON has provided us with no form of an indictment or information for riot; but he says at page 192, § 197: "It is deemed unnecessary to give forms for indictments for this offense. The pleader will first allege the unlawful assembly and the purpose thereof, according to the proper form, and then proceed to allege that the parties did do, or attempted to do, the acts which they assembled together to do." Mr. Bishop, discussing the form of an indictment for riot, says: "To constitute this offense, there must be (1) an assemblage (2)...