Opinion
(December Term, 1846.)
1. An indictment which charges that "A, B, and C, etc., with force and arms, etc., unlawfully, riotously and routously did assemble together to disturb the peace of the State, and did then and there, being so assembled and gathered together, make a great noise and disturbance in and near the dwelling-house of one W. S., proclaiming that the said W. S. and his wife were persons of color, offering them for sale at auction, and calling them vulgar and opprobrious names, all of which was done in a loud voice, so that the same could be heard at a great distance, to the great damage and terror of the said W. S. and his wife and the common nuisance, etc.," does not charge any criminal offense, inasmuch as it does not state that the said W. S. or his wife were in the house at the time.
2. Every indictment is a compound of law and fact, and must be so drawn, that the court can, upon its inspection, be able to perceive the alleged crime.
APPEAL from STANLY Fall Term, 1846; Dick, J.
The indictment is in the following words: "The jurors for the State, upon their oath present, that Nelin Hathcock, James Hathcock, and Green Hathcock, late of the county of Stanly, together with divers other evil disposed persons to the number of ten or more, to the jurors aforesaid unknown, on the 20th day of August, in the year of our Lord 1845, with force and arms, to wit, with sticks, staves, and other offensive weapons, at and in the county of Stanly aforesaid, unlawfully, riotously and routously did assemble and gather together to disturb the peace of the State, and did then and there, being so assembled and gathered together, unlawfully, riotously, and routously make a great noise and disturbance in and near the dwelling-house of one Willis Shed, proclaiming that they, the said Willis Shed and his wife, Election Ann Shed, were persons of color, offering them for sale at auction and calling them vulgar and opprobrious names, all which was done in a loud voice, so that the same could be heard at a great distance, to the great damage and terror of the said Shed and wife, and the common nuisance of the good citizens (53) of the State, and against the peace and dignity of the State."
The defendants upon the trial were convicted, and moved in arrest of judgment "because no offense was set forth in the indictment known to the law; or, if any offense was set forth, it was not sufficiently set forth." The motion was overruled, and the defendants appealed.
Attorney-General for the State.
No counsel for defendants.
Every indictment is a compound of law and fact, and must be so drawn that the court can, upon its inspection, be able to see the alleged crime. The offense, here intended to be charged against the defendants is that of a riot: in their assembling in a tumultuous manner in and about the dwelling-house of Shed, and there making a great noise, using abusive and insulting language. The gist of the offense consists in the defendants using such force and violence as amounted to a breach of the peace, and the law requires that in indictments of this kind the facts shall be so charged as to show a breach of the peace, or acts directly tending to it, and not a mere civil trespass. Here nothing but a civil trespass is charged. The indictment does not state that Shed or his wife, or any member of his family, was in the house or present at the time the defendants were guilty of this improper conduct; and, indeed, for anything that appears upon the record, the house was vacant. It is true, it is charged that the acts were committed "to the great damage and terror of the said Shed and his wife," but a conclusion cannot make an averment. Men may be guilty of a riot in assembling together to the number of three or more and in a tumultuous and violent manner breaking into a house, or demolishing it, or otherwise injuring it, though neither the owner nor any of his family be present; for that is, in itself, a breach of the public peace; but the essence of the charge here is not for any violence done to the dwelling-house, (54) but for riotously disturbing the owner in the quiet and peaceable possession of it, and the charge is not made with sufficient legal certainty unless it appear upon the face of the indictment that the owner or his family were present to be so disturbed. In looking into the precedents, we find this principle to run through them; thus 2 Chitty Criminal Law, 505, in giving the form of an indictment against three persons for a riot before the house of G. H., and shooting off a loaded gun, after setting out the riotous conduct of the defendants, charges, "and thereby then and there, not only greatly terrified and alarmed the said G. H. and his family, and disturbed and disquieted them in the peaceable and quiet possession, use, and occupation of the said dwelling-house," etc. It is very important that the line of distinction which separates a civil from an indictable trespass shall be kept as clear and distinct as the nature of the offense will permit; and in order to bring a trespass within the criminal jurisdiction of the court it must appear on the face of the indictment to amount to a violation of the criminal law.
It is the opinion of this Court that the judgment below is erroneous.
PER CURIAM. Reversed.
Cited: S. v. York, 70 N.C. 67; S. v. Stamey, 71 N.C. 203; S. v. Smith, 106 N.C. 657; S. v. Davenport, 156 N.C. 615.
(55)