
    The State vs. William Calder, et alias.
    
    A negro servant, (slave) with two white persons, may commit a riot.
    Where persons, unknown, with the person indicted were necessary to constitute the offence of a riot, they should be stated to be unknown, and so proved : If known, it should have been stated who they were.
    Where it incidentally came out on the examination that the domcsticks (slaves) of one of the persons indicted for a riot, were present, and by his order took off some fux-nitm-e, the court held, the evidence was not such as would constitute them parties to tire combination necessary to complete the offence of a riot.
    
      THIS was an indictment against William Calder, Priscilla Calder, John McJldam and George Keenan,
    and divers other persons, to the jurors unknown.”
    The indictment contained two counts; one for a riot, -and the other for an assault and battery.
    The jury acquitted John McJldam and George Keenan, They found Priscilla Calder guilty of a riot, and Wm. Calder guilty of a riot and assault.
    It appeared in evidence that Mr. Jtlexandcr Calder, the husband of Priscilla Calder, had let his billiard room, &c. to Jldolfe Bionbergh, the prosecutor. Mr. Calder had left the state, and made his brother, the defendant, his attorney in his absence. Some difference having taken place between the parties, with regard to the execution of the contract, Mr. William Calder and Mrs. Calder attempted to regain possession of the billiard room, books, &c. which lead to the alleged riot. In the course of the examination of the testimony, it appeared that some of the domestieks of Mr. Calder were pro-sent. They assisted in taking away some of the things, and in fastening up the house by the order of Mrs. Calder. But that testimony came out incidentally in the course of the examination, and not by any direct enquiry •as to the part which they took in the transaction.
    This was a motion to arrest the judgment, on the ground that two persons cannot commit a riot, and that as only two are convicted, judgment cannot be rendered against them.
    In support of this ground, it was contended :
    1st. That a negro in this state is not such a person in contemplation of law as can commit a riot.
    2nd. That the principle does not apply to domestick ■servants, acting under the immediate orders of their master or mistress.
    In ease the motion in arrest of judgment should'fail, then a motion was made for a new trial, on the ground that the evidence was not'sufficient to establish the fact of any such concert or co-operation on the part of the servants as to implicate them in the riot; and,
    Also on the ground of surprize in the - charge of the court, that the co-operation of the servants was sufficient to authorize the jury to find any number of the defendants guilty, when, from the manner of conducting the prosecution, the defendants were not induced to believe that any such ground would be relied on.
   Mr. Justice Nott

delivered the opinion of the court:

The law is too well settled to be questioned at this day, that less than three persons cannot commit a riot. If, therefore, any number of persons are indicted, and all but one or two are acquitted, judgment cannot be rendered against those who are convicted, unless the act be charged to have been committed with other persons unknown.— But if it be charged in the indictment, and proved, that there were other persons concerned, who were unknown, the conviction is good. In the case now under consideration, the indictment charges the offence to have been committed with divers other persons to the jurors unknown.” On the face of the indictment, therefore, there does not appear to be any legal objection to the conviction. It did not appear from the testimony that the domesticks were slaves, or even that they wrnre black per-# sons. That is an inference drawn from the fact that there are few servants in this county except of that description, and from the universal understanding, that when a servant is spoken of, a person of color is meant. But if we allow to the word its usual acceptation, the result will be the same. In the case of the State vs. Thackam & Mayson, (1 Bay, 358,) it was decided that a negro might be a party to a riot, so as to render the other person or persons concerned guilty, though not amounting to three in number ; and this was not a nisi prius case, as is supposed, but is a decision of the Constitutional Court. It is not said in so many words in that case, that the negro was a slave, yet it seems to be inferrible from the whole case# taken together, and the decision of the court certainly does not contemplate any distinction between a free man of color and a slave. There does not, therefore, appear any-ground on which the judgment can be arrested. But it does not appear that the servants were unknown. If they were known, it should have been stated who they were. If they were not known, that allegation ought to have been proved. But even if it had been proved that they were unknown, I think the evidence would not have been sufficient to have authorized a conviction. There was no such evidence of combination or agency on their part as would have implicated them. Besides the whole course of the examination was directed to the conviction oí the persons mentioned in the indictment, with little reference to those who were represented as unknown. The servants appeared to be only incidentally mentioned, without any apparent intention of procu ring a conviction, on theground of an association with them. I think, therefore, that the verdict, so far as it relates to the conviction for a riot; ought to be set aside. Mr. Calder, however, is convicted on the second count for an assault. That was a question for the consideration of the jury, and I think the charge was sufficiently supported. The motion,for a new trial on that count is, therefore, refused.

Hunt Crafts, for the motion.

Petigru, Att’y Gen; contra.

Justices Richardson, Gantt and Johnson, concurred.-  