Green v. State

• Court: Supreme Court of Georgia
• Writing for the Court: COBB
• Citation: 109 Ga. 536,35 S.E. 97
• Decision Date: 26 January 1900
• Parties: GREEN et al. v. STATE.

35 S.E. 97
109 Ga. 536

GREEN et al.
v.
STATE.

Supreme Court of Georgia.

Jan. 26, 1900.

RIOT—INDICTMENT—EVIDENCE—INSTRUCTIONS.

1. An indictment alleging that certain named persons "did, in a violent and tumultuous manner, prevent the sheriff * * * from removing from the common jail" a prisoner therein confined, sufficiently charges the offense of riot, as against a special demurrer setting up that the indictment did "not allege any act, done in a violent and tumultuous manner, which prevented" the sheriff from removing the prisoner. Aliter, if the point had been made that the act charged was not set forth with sufficient particularity.

2. Evidence warranting a finding that a number of persons, some of whom were armed with deadly weapons, plainly exposed to view, suddenly congregated at a given signal for the purpose of preventing the removal of a prisoner from jail by the sheriff and his posse, acted in an excited manner, talked loudly, ran about from place to place, and made use of threatening, profane, and violent language, thereby intimidating the sheriff

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and his posse, and actually preventing the removal of the prisoner until the arrival of military troops sent to bis assistance, authorized the conviction of these persons of the offense of riot, (a) All persons connected with and sharing in the common purpose of the assembly were guilty of riot, whether their conduct was violent and tumultuous or not.

3. The judge committed no error in charging or in refusing to charge as requested. Such of the other grounds of the motion for a new trial as present questions in a manner that can be dealt with disclose no error requiring the granting of a new trial.

* (Syllabus by the Court.)

The special demurrer above referred to was intended to present, and did sufficiently present, the objection to the indictment that it did not set forth what means the accused employed, or what specific act or acts they did, for the purpose of preventing the removal of the prisoner, and therefore did not with the requisite particularity put the accused on notice of the charge they were called upon to meet. Thus interpreted, the demurrer was good, and ought to have been sustained. Per Lumpkin, P. J., and Fish, J., dissenting.

Error from superior court, Mcintosh county; P. E. Seabrook, Judge.

Jonas Green and others were convicted of riot, and bring error. Affirmed.

Twiggs & Oliver, A. A. Lawrence, R. L. Colding, and R. L. Travis, for plaintiffs in error.

L. Kenan, Sol. Gen., W. G. Charlton, and W. C. Hartridge, for the State.

COBB, J. Jonas Green, Moses Miller, Jr., Lawrence Baker, and a number of others were arraigned in the superior court of Mcintosh county on an indictment containing two counts, each of which charged the commission of the offense of riot. The first count charged that these persons, on a day named, "having a common cause of quarrel, did violently and tumultuously commit an unlawful act of violence, by preventing the sheriff of said county from removing from the common jail of said county one Henry Delegal, a prisoner therein under the laws of Georgia, to the terror of the people, and contrary to the laws of said state, " etc. The second count charged that the persons named in the indictment, "with a common cause of quarrel, did, in a violent and tumultuous manner, prevent the sheriff of Mcintosh county from removing from the common jail of said county one Henry Delegal, therein confined under the laws of Georgia." The accused filed demurrers, both general and special, to the indictment; the special demurrers being as follows: (1) The indictment does not set forth or describe in the first count thereof any unlawful act of violence which prevented the sheriff from removing Delegal from the common jail of Mcintosh county; (2) the indictment does not, in the second count thereof, allege any act done in a violent and tumultuous manner which prevented the sheriff from removing the prisoner. The demurrers were overruled, and exception was duly taken to this ruling. After evidence was introduced, the jury returned a verdict of guilty as to Green, Miller, and Baker, who had elected to sever from the others, and were tried jointly. They made a motion for a new trial, which was overruled, and they excepted.

It appears from the evidence that the sheriff of Mcintosh county and his posse attempted to remove Henry Delegal, a prisoner, from jail, and carry him to Savannah. About the time this attempt was being made a church bell was rung, at which signal a crowd of persons, variously estimated at from 75 to 250, among whom were the plaintiffs in error, began suddenly and rapidly to congregate. The members of the crowd ran about from place to place, cursing and talking loudly and in an excited manner. A number of them were armed with deadly weapons, plainly exposed to view. Some members of the crowd were heard to make use of threatening and violent language; one remarking that the sheriff and his assistants were going to remove Delegal to Savannah, and that he was going to "see about it." Another was heard to remark, upon the arrival of troops sent to quell the disturbance, that: "They are working a new trick on us. Get to your arms." Another said "she would be the first to throw a couple of shots among the white sons of bitches." And still another said that "they intended to kill out all the white people in town." The crowd, however, made no hostile demonstration toward the sheriff or his posse; but, as he testifies, he was prevented by their conduct from removing the prisoner until later on, when he was enabled to accomplish this purpose with the aid of troops which were sent to his assistance. It is evident from the testimony that the crowd was in an ugly frame of mind, and that it needed but little to stir them into the commission of open acts of violence, and most probably bloodshed. The evidence shows that the plaintiffs in error were connected with the other members of the crowd, and shared their common purpose, and that all of them were armed.

1. The section of the Code dealing with the subject of riot is in the following language: "If two or more persons do an unlawful act of violence, or any other act in a violent and tumultuous manner, they shall be guilty of a riot, and be punished as for a misdemeanor." Pen. Code, § 354. Riot at common law is defined by Sir William Blackstone as follows: "A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, * * * or do any other unlawful act with force or violence, or even do a lawful act * * * in a violent and tumultuous manner." 4 Bl. Comm. 147. The only material difference between the two definitions seems to be that at common law the offense could not be committed by less than three persons, and under our statute it can be committed by two. The words "with or without a common cause or quarrel" were originally In the Code definition. See Code 1882, § 4514. But these words were omitted from the Code of 1895. Their omission does not materially change the defi

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nition of the offense, and therefore, in substance, it remains the same as it was at common law. The section of the Code above quoted embraces two separate and distinct classes of riot; the first being when "an unlawful act of violence" is committed, and the second when two or more persons commit "any other act in a violent and tumultuous manner." Under the view we take of the present case, it is unnecessary to determine whether, as against the demurrer filed in the present case, the first count in the indictment sufficiently charges the commission of an unlawful act of violence. See, in this connection, however, Reg. v. Gulston, 2 Ld. Raym. 1210; Bonneville v. State, 68 Wis. 680. 11 N. W. 427; State v. Brazil, Rice, 257; State v. Dillard, 5 Blackf. 365. An examination of the evidence in this case has satisfied us, as will be shown hereafter, that it was sufficient to authorize the conviction of the persons on trial of that class of riot which is brought about by the commission of some act in a violent and tumultuous manner. It is necessary, therefore, to determine whether the second count in the indictment, which attempts to charge such an offense, was a sufficient indictment, as against the demurrer which was filed to the same. The indictment charges...