
    
      The State vs. William Alexander, R. Goulding, and And. Wilson.
    
    Defendants, three in number, went, with another person, at midnight, in a frolic, and upon concert, to the stable of prosecutor, to share his horse’s tail: they did so, and made some noiso which aroused the prosecutor, and alarmed his family : — Held, that defendants were guilty of a riot.
    
      Before WhitNer, J., at Abbeville, Fall Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “These defendants were indicted and convicted for a riot, &c., in the village of Abbeville on the following proof:
    
      “Dr. J. Branch testified, that, at midnight in October of the last year, and during the sitting of the Court, he was aroused from his bed by a call from his domestics, that persons were in his stable: on getting into the yard he heard voices in the direction of his stable, pretty loud, then saw a light suddenly blaze up and go out as if by the kindling of a match; ascertained to be in his stable. The horse was stamping: witness ran out in his undress and barefoot, procured a stick and nearing, the door of the stable called for a light, which was brought out, though no person was found : noise was heard of voices and foot tread across- in the direction of Fair’s lot, or in the street next Lo-max’s. The witness found blood in the'stable: horse bleeding freely, bis ears being cut, and perhaps at some other part of the head, and his tail shaved ; no other disturbance, nor did he know that any beside his own family were alarmed or disturbed ; no arms were seen, nor were oaths or threats heard.
    “ L. E. Jackson testified, that the defendants and this witness were of the party who went to Dr. Branch’s stable on the occasion referred to; Goulding proposed to witness to go and shave the horse’s tail ; they went to Wilson’s and asked him if he would go ; he agreed, got the shears from the tailor’s shop, and they all set off together; oil their way asked by another to join, which was declined by the party. They proceeded to the stable of Dr. Branch; Alexander and Gouldiug went in, and witness and Wilson remained without the stable, though near by; Alexander said he had dropped his knife with which he had cut the main; after it was over they all ran off. It was late at night; persons generally in bed; this witness said there was talk, but in an ordinary tone ; that it was a frolic; he knew of no quarrel, nor malice toward Dr. Branch, and supposes the ear was cut accidentally; this witness heard Dr. Branch knew them, and he chose to confess the fact; confession was not made to get the reward.
    “ Edmund Cobb and David Knox were each sworn, but neither testified to any new fact, having heard admissions only of one or another of the defendants that they were of the party.
    “ I confess that from my view of the facts, I scarcely supposed the offence charged, made out, but thought proper to submit the question to the jury, having furnished them with a careful definition of the offence aud a brief examination of the legal elements essential to its commission; as a general proposition I did say, that an assemblage of men in numbers, in the night time, under unusual circumstances as to time and place, constituted ingredients that might well be considered, with others, in determining the question of terror, &c.; but neither held the doctrine attributed in the first ground, nor intimated any opinion that such was my impression from the proof.
    
      “ The jury returned a verdict of guilty, and if the fact will justify such a legal conclusion on the review invited by the appeal, few offences will have better merited the punishment that awaits them.”
    The defendants appealed, and now moved this Court in arrest of judgment; and failing in that, then for a new trial, upon the following grounds :
    1. Because it is respectfully submitted, that his Honor erred in holding that the circumstance of the defendants assembling in the night time, was sufficient to constitute a “ tumultuous assembling.”
    2. There was no proof of concert — of intention to commit a breach of the peace — of a tumultuous assembling in terrorem populi, of a show of armor, or an intention to oppose any who should come against them.
    3. Because all the circumstances proved on the trial, could not constitute a riot, of which the defendants were convicted.
    Marshall, for appellants,
    cited Hal. P. C., ch. 65, § 1; State vs. Sumner, 2 Sp. 599 ; State vs. Brazil, Rice, 257.
    
      Heed, Solicitor, contra.
   The opinion of the- Court was delivered by

Glover,!.

This case having been submitted to the jury with proper instructions, there is no good reason to review their decision, if the presiding Judge had not reported, that from his view of the facts he scarcely supposed that the offence had been made out.

The grounds of appeal submit, that there was no proof of concert, of intention to commit a breach of the peace, of a tumultuous assembling in terrorem populi, of a show of armor, or of an intention to oppose any who should come against them.

L. E. Jackson, who was particeps criminis, proved the assembling of the defendants, their concert to commit a trespass, and the execution of their purpose ; add to this the evidence of Dr. Branch, who was aroused from his bed at midnight by his servants, and heard the noise and saw a light in the direction of his stable, and we have the prominent facts which are required in a definition of riot.

A show of arms, like threatening speeches, turbulent gestures, &c., is only one of the circumstances which are calculated to produce alarm. If persons assemble to do an unlawful act, the apparent tendency of which is to'inspire terror, and they execute their purpose, it is not necessary to show that it was in terror em populi. (11 Mod. 116.)

The defendants assembled at midnight, concerted to do an unlawful act, prepared the necessary instruments, committed a trespass, and because the alarm was limited to one household, they object that the offence is not established.

It appears to the Court that the evidence sustains the verdict, and that the defendants can take nothing by their motion.

Motion dismissed.

O’Neall, Wardlaw, Withers and Whitker, -JJ., concurred.

Appeal dismissed.  