Smith v. State

Full title: SMITH et al. v. THE STATE

Court: Court of Appeals of Georgia

Date published: Feb 16, 1945

33 S.E.2d 120 (Ga. Ct. App. 1945)

33 S.E.2d 120

Opinion

30731.

DECIDED FEBRUARY 16, 1945.

Attempt to riot; from Savannah city court — Judge Heery. October 27, 1944.

Ernest J. Haar, for plaintiffs in error.

The evidence does not sustain the verdict.

DECIDED FEBRUARY 16, 1945.

BROYLES, C. J.

"Any two or more persons who shall do an unlawful act of violence or any other act in a violent and tumultuous manner shall be guilty of a riot and be punished as for a misdemeanor." Code, § 26-5302. "To constitute the offense of riot, there must be not only a common intent on the part of two or more persons to do an unlawful act of violence or some other act in a violent and tumultuous manner, but also concert of action in furtherance of such intent." Coney v. State, 113 Ga. 1060 ( 39 S.E. 425). "The mere making a noise or behaving tumultuously will not alone constitute riot, in the absence of any violence." Barron v. State, 74 Ga. 833. In the instant case the two defendants were convicted of an attempt to commit a riot, but there was no evidence authorizing a finding that they were acting in concert or that either of them acted in a violent or tumultuous manner or had any intent to provoke violence or tumult, or to authorize a finding that they were guilty of an attempt to commit an unlawful act of violence or any other act in a violent and tumultuous manner. Therefore, the denial of a new trial was error. The special grounds are not considered.

Judgment reversed. MacIntyre, J., concurs.

GARDNER, J. dissenting.

In my opinion the evidence is sufficient to sustain the verdict of an attempt to commit a riot. The special grounds are without merit, and therefore the case should be affirmed.