
    Commonwealth versus Hamilton Runnels and Others.
    In ail indiitment for a not, it is sufficient to allege that the defendants assembled with force and arms, and being so assembled did, &c., without repeating the force and arms.
    If an unlawful act is charged in such indictment to have been committed by the defendants, there is no occasion to allege that it was done in terrorem populi.
    
    If numbers assembled disturb others in the enjoyment of a lawful right, it is a riot.
    The indictment charges that the said Runnels, with five others named therein, “ together with a great number of other persons, to the amount of fifty or more, (to the jurors aforesaid as yet unknown,) on the 6th day of April, 1812, being the first Monday of the same month, in the afternoon of the same day, with force and arms, at Salem aforesaid, in the county of Essex aforesaid, unlawfully, riotously, and routously, did assemble and gather together, to disturb the peace of the commonwealth aforesaid ; and being so assembled and gathered together, unlawfully, riotously, and routously, with shouts and huzzas, did then and there rush into the public townhouse or court-house, wherein the citizens, being legal voters of the said town, were then and there constitutionally and legally assem bled in town-meeting, for the purpose of giving in their votes, as well for governor and lieutenant-governor of the said [ * 519 ] commonwealth, as for senators * for that district of the said county of Essex, of which the said town of Saem is part; and at which meeting Samuel Ropes, together with Abel Lawrence, William Mansfield, Philip Chase, and Michael Webb, being selectmen of said town of Salem, then and there presided, and were then and there receiving the votes of the legal voters of said town of Salem for the officers aforesaid ; and being so entered, they, the said Runnels, &c., with the other persons to the jurors unknown, unlawfully, riotously, and routously, with great noise and tumult, did attempt to seize the boxes, in which the votes of the qualified citizens were deposited, and did then and there impede and obstruct the said Ropes, &c., selectmen, as aforesaid, in the discharge of their duties in their office aforesaid, for a long time, to wit, two hours, to the great damage of the said selectmen, in derogation of the free right of suffrage of the legal voters of-said town of Salem, against the peace of the commonwealth aforesaid, and the laws of the same.”
    The defendants, being found guilty, moved in arrest of judgment, for the insufficiency of the indictment in several particulars. This motion was argued by Morton, attorney-general, for the common wealth, and by Pitman for the defendants. The opinion of the Court was delivered by
   Parker, J.

The defendants, having been convicted upon trial on this indictment, now move that judgment may be arrested for the causes stated in the motion, viz.:

1. Because the several acts, alleged in the indictment to have been done by the defendants, are not alleged to have been done with force and arms.

2. Because they are not alleged to have been done to the terror of the people, &c.

It was also suggested in the argument that the facts stated in the indictment do not technically constitute a riot.

With respect to the first objection, we think that the words “force and arms,” introduced into the first part of the indictment, may, without any violence to the sense, or any offence against grammatical rules, be applied to every distinct allegation; and that they are properly applicable m this manner. It is alleged that the defendants did, *on the day mentioned [ * 520 ] in the indictment, assemble unlawfully, with force and arms, and that, being so assembled, they committed the acts which are the ground of the prosecution.

If, in common parlance, it were asserted that three men were assembled together, with clubs in their hands, and, being so assembled, they beat and bruised a passenger to, — inquire whether they had the clubs in their hands when they beat him would be considered not a little ridiculous. Common sense is not to be deemed a stranger to legal process, but as very influential in ascertaining the force and effect of words and sentences, which, although technical, are to receive a sensible construction.

The next objection is equally without foundation. The phrase in terrorem populi is used by Hawkins as descriptive of the offence denominated a riot; but it is clear that there may be a riot without terrifying any one. Lord Holt has given a distinction, founded in good sense, between those indictments, in which the words in terrorem populi are essential, and those wherein they may be omitted. He says that, in indictments for that species of riots which consist in going about armed, &c., without committing any act, the words aforesaid are necessary, because the offence consists in terrifying the public; but in those riots in which an unlawful act is committed the words are useless.

And upon consulting the precedents, we find this distinction accurately observed ; there being no averment of terror, where an actual violence is charged to have been riotously committed.

There is still less in the last objection, viz., that the facts charged do not amount to a riot. An unlawful assembly, riotously and tumultuously disturbing the selectmen of a town, in the exercise of their duty, on a public day, and in a public place, and obstructing the inhabitants of a town in the use of their constitutional privilege of election, is a riot,.and an aggravated one. To'disturb another in the enjoyment of a lawful right is a trespass ; and if it is done by numbers unlawfully combined, the same act is a riot.

Motion overruled.

ADDITIONAL NOTE.

[If persons innocently and lawfully assembled afterwards confederate to do an un lawful act of violence, suddenly proposed and assented to, which is done accordingly, though their whole purpose be not consummated; this is a riot.— The State vs. Snow, 6 Shepl. 346.

Where several are jointly indicted for a riot, one of them is not a competent witness for the others, though he has separately pleaded in defence. — State vs. Mooney, 1 Yerg. 431.

Where three are indicted for a riot, and one tried separately and convicted, the others not being tried; judgment shall be rendered against him.— State vs. Allison, 3 Yerg. 428.

See Douglass vs. The Stete, 6 Yerg. 525. — F. H.] 
      
       11 Mod. 116
     