
    The State vs. John Jenkins, and Scipio Fraser alias John Williams.
    
      Criminal Law — Murder—Biot—Indictment—Evidence.
    There is no such separate offence known to the law as a “riotous homicide” — the fact that the killing was committed by a crowd of persons engaged in a riot does not distinguish it in kind or degree from o’ther felonious homicides.
    Where a murder is committed by a number of persons engaged in a riot, What is necessary to be stated in the indictment, and what not, considered.
    Where, in such a case, the indictment, against two only of the rioters, charges that the mortal injury was inflicted by the prisoners, proof that it was inflicted by others of the rioters, whether they be known or unknown, will sustain the indictment — all present and participating in the commission of the offence being equally guilty.
    Where the indictment charges that the deceased came to his death by “bricks and stones cast and thrown ” by the prisoners, proof that he came to his death by means of bricks or stones cast, &c., or by kicking and stamping, will be sufficient.
    The indictment should state a particular means or instrument of death, (or, if the fact be so, that it was by means or instrument unknown,) and also a particular part of the body as the locality of the injury; but these allegations need not be strictly proved. If the mode of applying the violence be the same in kind, that will be enough, though the weapon or instrument used, and the part of the body hurt, be different.
    BEFORE DAWKINS, J., AT CHARLESTON, JANUARY TERM, 1867.
    The report of his Honor, the presiding Judge, is as follows:
    “The defendants were indicted and found guilty of the murder of E. M. Branford. The prisoners appeal; and I will give a brief statement of the case, as the evidence will accom. pany this report and explain the facts fully.
    “On the 24th June, 1866, the prisoners, with other colored persons, had a difficulty with some of the city police, at or near the battery. They passed up King street, uttering threats and behaving in a rude and riotous manner. The prisoners controlled and were the leaders of the party. They passed into Tradd street, where the deceased was quietly passing, alone and unattended. They commenced the attack by throwing-bricks; Jenkins threw first, and Fraser next. The deceased attempted to make his escape by running, but was knocked down by a brick thrown, most probably, by Jenkins, which gave the mortal bruise, (Ahrens’ evidence.) When prostrate on the ground, the assailing party gathered about Mm and kicked and stamped him, but it did not appear by which one of the party. The deceased was carried to his father’s residence by two colored persons not of the assailing party, and died on the 27th June, 1866, from the wounds arid bruises then received.
    “ The indictment was in the usual form, and I held it sufficient, and said to the j ury, that all who were present, aiding and abetting, were properly chargeable as principals. Where two or more persons combine or conspire to commit an offence, and conspiracy enters into and forms a part of it, it should be stated in the indictment. It did not appear to me material, in a charge for murder, whether the parties charged by concert, laid in wait, or riotously assembled: the gist of the crime was the homicide.
    “ Neither did I regard it material whether the death was produced by the bricks cast and thrown, or by the kicks and stamps. Any means used calculated to produce a wound or bruise similar to the one described in the indictment will be sufficient, though the instrument used is different from the one 'stated. My impression was, the mortal wound or bruise was given by the brick thrown by Jenkins.
    “ What I have said, with a copy of the evidence, will enable the Ooupt of Appeals to decide the case. The counsel for the prisoners have furnished me with a copy of the evidence, as reported in one of the daily papers. I have examined it, and attach it hereto as part of my report, believing it correct.
    “ The counsel for the prisoners were assigned by the Court. They manifested commendable zeal, research, and ability in their defence; and it is greatly to their credit that they have taken this appeal without fee or reward, and at considerable expense, believing, as I have no doubt they do, the forms of law were not complied with. I considered it an unprovoked, unmitigated murder.”
    EVIDENCE.
    
      E. M. Whiting, Esq., deposed that he is Coroner, and was called upon to investigate the death of E. M. Branford, on the 28th of June, The body was at his father’s house in Lime-house street, which is the last but one from Tradd street, and runs to the water; the body was laid on a table, the features much discolored and swollen; called in Drs. Mitchell, Michel, and Winthrop, who were in attendance during illness; commenced investigation on the 28th of June, and concluded on the 5th of July; examined some twenty witnesses, and took the testimony of two colored women, who, on being taken to the jail, identified the prisoners as the ringleaders who had inflicted the injuries; the women were named Kate Kennedy and Sarah Brown.
    
      Gross-examined. The verdict was rendered on the 5th of July, and the women gave their testimony at that investigation ; on the 29th June, Sarah Brown, and on the 3d July, Kate; they knew the first names of the prisoners, but not their surnames; he had examined about nine witnesses before he took the women to jail; other witnesses identified the prisoners before that time; went to the house about 9 A. M., and found the body as described.
    
      Dr. Henry Winthrop deposed that he is'a practising physician, and was called on in June last, on Sunday evening, to see E. M. Branford, at his father’s house. He was weak from tbe blows received, and from tbe loss of blood; tbe wound was on tbe top of the head, about four inches above the right eyebrow; he had a severe contusion on the right jaw, which was much swollen and discolored; the two principal blows were those mentioned, but he had bruises on his face and chin which must have been inflicted by separate blows; continued to attend the case, with Dr. Mitchell, until death; .he died of his wounds.
    
      Oross-examined. The blood was from the principal wound on the head; that, with the wound on the temple, extending to the right jaw, caused the death; wound on the head caused the fracture of the skull; patient lived until Wednesday afternoon ; wound on the -head apparently inflicted by a brick or stick, but could not say positively; was evidently not inflicted by a sharp instrument.
    
      Dr. Mitchell deposed that he was called in the morning (early) after the occurrence; regarded patient in a dying condition; state of wounds same as described by Dr. Winthrop; there was a suffusion of blood on the brain, caused by the fracture and breaking of some blood-vessel; died on Wednesday night, and the death was caused by the wounds received; the wound on the skull caused the fracture, which led, in a great measure, to the death; at the post-mortem examination found a quantity of blood between the membrane of the brain; the wounds were evidently inflicted by some dull instrument, such as a brick or stick.
    
      Gross-examined. Could not say at what distance the person inflicting the wound was from the deceased, but was evidently done by a brick; the person must have been near, from the nature of the skull wound; presumes deceased had fallen, and the wound was inflicted while prostrate; the wounds on the side of the head might have been inflicted lying on his back.
    
      Dr. Middleton Michel deposed that he was called in on Thursday, the 28th of June, to assist in the post-mortem examination ; found the face much contused; right eye closed, and general appearance of the face indicated a contusion, not an incision; the principal wound was in forehead, about four inches from right eye, and on removing the skull-cap clotted blood was found, which had formed a membrane; on the frontal bone was a fracture of considerable extent, travelling upwards and downwards and laterally; his opinion was, that from the character of the wound it was inflicted by a weapon coming from a distance, as there was no depression of the bone; the brain was highly congested, and had a clot of blood embedded in the brain proper; the wounds were quite sufficient to produce death, and were evidently caused by a missile thrown, and from long experience knows that a blow given near by depresses the bone.
    
      Cross-examined. Wound on forehead was over the right eye, about four inches, and evidently the blow came from above downward; stated what was his opinion of the wound at the time of investigation; the wound would not have been altered if the party receiving it had been prostrate, but the missile was 'evidently thrown from some little distance, and forming a parabolic curve came upon the skull in a descending direction.
    
      Mrs. Susan Wilson deposed that she resides in Tradd street, on the west side of King, on the south side, at No. 75; on Saturday was sitting in her yard and heard a great noise, and looking out saw a number of men with brickbats throwing them at a young man, who was walking along quietly ; he was finally knocked .down, and they still threw at him; she went across the street and looked at him; two black men afterwards carried him off; the crowd was composed altogether of colored men and boys, who were very noisy and boisterous, using obscene and filthy language; they were cursing the police,-and wanted to kill them; did not recognize any person, owing to her own excitement and alarm, but knows that the two prisoners were in the crowd.
    
      Cross-examined. Mr. Branford was coming toward King street, and was walking along quietly; tbe crowd surrounded kirn, and after he commenced to run away from them they still threw at him, and, when he fell, stamped on him ; he fell opposite to her house, and the crowd was to the right and left.
    
      Mrs. Henrietta Miangles deposed that in June last she lived at No. 27 King street, west side, between Tradd and Lamboll, and was at home when the street-riot occurred: was sitting at her window and saw a'crowd pass with brickbats and sticks; saw John Jenkins twirling a club, and heard him say he had laid one fellow out in Tradd street, and he would never rise to use his club again; Jenkins’ club was very like a policeman’s ; she immediatly closed her window and went away, as the brickbats were flying in all directions.
    
      Mr. Walter Webb deposed that he lives at No. 40 King street, opposite to Mrs. Mangle’s. On the evening in question he was sitting in front of his door and saw Jenkins pass, twirling his club, and saying that he had laid one d — d rebel low; the crowd passed on, but after a while returned in haste, and Jenkins ordered a halt, and said there was enough done for that day, and told them to disband until the next night; knows Jenkins well, as he lived in the neighborhood, and was a nuisance to that section; he was in command, and about a few feet in front of the band, who were about fifteen in number.
    
      Cross-examined. Heard Jenkins coming up from the battery, going towards Tradd street, and heard him make the remarks when opposite his house; it was between four and six o’clock when they returned; he was standing in his door, and they flung a brick at him, breaking some slats in the window; saw Eraser in the crowd, but did not see him do any overt act.
    
      E. M. Whiting, Esq., explained that Sarah Brown and Kate Kennedy knew Scipio Erazier and John Jenkins; did not know their surnames, as before stated, but both identified them on visiting the jail.
    
      Charles Bober deposed that in June last he lived at No. 75 Tradd street, in the same house with Mrs. Wilson. On Sunday night, about eight o’clock, heard the row in King street, and looking out the window saw a crowd of colored men and boys armed with bricks and sticks running after a man who was coming from Orange street; he fell when opposite the house, and one man went to him and cursed him, and lifted up his foot to stamp him, but did not see him do so; he lay there about eight’ or ten minutes, and then two colored men lifted him up and carried him off; he was running, at the time he fell, towards King street, and fell forwards ; the crowd was very near.
    
      G. F. Ahrens deposed that he lived at No. 86 Tradd street, north side, between Orange and King, one door from Orange ; was there at the time of the row; was standing in the piazza, about eight o’clock, and heard the men coming up; John Jenkins and Scipio Eraser were leaders; Mr. Branford was walking along, saying nothing to any one, when the crowd attacked him with bricks; saw Jenkins and Eraser both throw bricks which took effect on Mr. B.; Jenkins threw one after he fell, and stamped upon him; they were the leaders of the crowd, and he knew them well; Jenkins lived in Weinges’ court and Eraser in Legare street; saw Eraser since the occurrence ; heard him say, in his yard, that he had killed one white-livered rebel s— of a b — , and would kill another, and he had him arrested. This was the day subsequent to the murder; Scipio was arrested and carried to the Provost Court, and came back, and it was after this that he had been arrested; he was by a window and overheard the conversation of Scipio with Sarah and Kate.
    
      Cross-examined. The crowd was coming from King street, and Branford from Orange street; knows Mr. Eober, and saw Mrs. Wilson cross over to where B. was lying after he was knocked down; Jenkins flung the first brick and Scipio the second; B. then ran, and was by their house when Jenkins hit him again.
    
      
      Sarah Brown deposed that she knows Mrs. Ahrens’ house in Tradd street; was there at the time of the riot, on Sunday evening, between four and five; saw the crowd coming from King street, and Mr. Branford from Orange street; saw them fling at him; saw Scipio in the crowd throwing bricks, but could not say if Jenkins was there; Scipio immediately after-wards boasted of having struck the first blow, and having killed one rebel s— of a b — , and would kill another; he repeated this statement the next day, and she had him arrested.
    
      Kate Kennedy deposed that she lived with Mrs. Ahrens in June last; remembers the riot well; she did not se.e the fuss, but was present in the yard when Scipio made the statement that he had struck the first blow, and had laid out a white-livered s— of a b — , and would kill more, and bragged that they had not caught him; she was not at home at the time of the riot; had Scipio arrested the next day, on his reaffirming that he had killed Branford.
    
      Thomas Hill deposed that he was on the police in June last; was on duty at the battery on Sunday, 24th of June last; about five o’clock he was posted there, and was ordered to disperse some colored men and boys who were making a disturbance; called in the assistance of Jackson, and arrested a boy; carried him a short distance, when he'was attacked by Jenkins and Scipio, but some white men drove them off and they left, saying they would return with a larger force; after that difficulty was quelled he again took his position on the. battery, and saw a number of colored men and boys marching two deep, and under the command of Scipio and Jenkins, who started attacking the white citizens with brickbats, and drove them into Meeting street; a sergeant was knocked down and lost his hat and club; did not see who took it, as he was leaving too quick himself; the citizens came to their assistance, and they finally drove the negroes off; the fighting was done near Smith’s lane, and the negroes were under the command of Jenkins, who issued orders to fire, halt, &o.; Scipio was evidently an officer in the same band.
    
      Thomas Jackson deposed that he was on the police in June last; was off duty on the battery, and went to the assistance of Thomas Hill, at the request of Lieut. Hendricks; he went there and told them to leave, but they would not; a one-armed man, who was haranguing the crowd, was arrested, but knocked him down; he recaptured him near Lamboll street and carried him to the guard-house, where he notified the officer of the day about the riot; saw Jenkins, but not Scipio.
    
      Mr. William Roach deposed that he was acting as sergeant of Western Division; heard of the row, and went down with a squad to the battery, and saw about forty or fifty men come up from the boom-proof and commence to fire bricks; a brick hit him on the hand; the crowd was so dense that they concluded to leave, and as they were doing so they were again attacked, and he was knocked down; while he was down he lost his club and hat; the club was subsequently found in Tradd street; could not identify any persons who were in the crowd.
    
      A. Habernicht deposed that he was at the battery in his vessel, a short distance off, and saw the crowd on the battery; noticed Jenkins rallying the crowd; had been lying there some days discharging oyster shells, and had frequently observed Jenkins leading the crowds in their riots on the battery.
    
      H. H. Mangles deposed that he was on the police in June last, and on the Sunday evening in question was standing in his doorway, and saw a crowd of men and boys come up from the battery, headed by John Jenkins, who stated that he had laid out one rebel s— of a b — , and would kill another; they then went towards Tradd street,'while he went through Price’s lane to Meeting street, and then to the guard-house; reported the proceeding there, and arrested Jenkins on the Wednesday following.
    
      Mr. O’Reilly deposed that he was on the police in June last, and arrested Scipio from information given by Sarah Brown, that he had killed Branford; he took him to the guard-house, and he was sent to the Provost Marshal, who released him; he was subsequently rearrested through young Ahrens. ' .
    
      Mr. Belyea deposed that he was on the police, and about the 26th of June arrested Scipio, by order of Lieut. Campbell ; he found him in Mrs. Ahrens’ yard.
    
      Lieut. Campbell deposed that he remembers the riots of last June; they were principally on the battery and in that vicinity, ; Lieut. Hendricks was officer of the day on Monday, and he was relieved by deponent; he heard that Scipio had been released by the Provost Marshal, and on information given him by Ahrens, he ordered Jackson and Relyea to rearrest him; Jenkins was not arrested till some time subsequently.
    The defendants appealed, and a motion on their behalf was now made'before this Court for a new trial, on the grounds:
    1. That his Honor erred in charging the jury that the indictment, as drawn in this case, was sufficient to sustain a case of riotous homicide, (wherein the killing might have Deen by other persons than the parties charged, and in a manner and form different from the manner and form laid in the indictment.)
    2. That his Honor should (as requested) have charged the jury that if they believed that the deceased did not come -to his death by "bricks and stones cast and thrown” by John Jenkins and Scipio Eraser, as laid in the indictment; but, on the contrary, believed from the testimony that the deceased came to his death “ by means of a crowd of persons beating and stamping the deceased on the ground or otherwise;” that in such a case the indictment, as drawn,-was insufficient, and the jury should find the defendants "not guilty.”
    
      3. Because all the circumstances constituting the guilt of the accused should be fully set forth in the indictment; and where the guilt consists of the participation of the accused with others engaged in an unlawful purpose, in which the death is accomplished by means not known to the grand-jury, the indictment should aver the presence of other persons so engaged, and the killing as the result of such action.
    
      Whaley, Barlcer, for appellants.
    
      Hayne, Attorney-General, contra.
   The opinion of the Court was delivered by

Inglis, J.

The nSotion for a new trial rests upon two grounds. One of these alleges a defect in the indictment, and consequent error of the presiding Judge in charging the jury that the indictment is sufficient in law for the case. It is said that according to the evidence, Branford, the deceased, was killed by a party of men (among whom were the prisoners) engaged at the time in a riot, and that the indictment ought, therefore, to have charged a riotous homicide.” There is no such separate offence as this. The only distinctions of homicide known to the reprobation of our law, in its practical administration, are murder and manslaughter. The circumstance, that a riot was in progress at the time, and the killing occurred in the prosecution of such riot, does not in law distinguish the homicide either in kind - or degree. It is supposed that the contrary was not intended to be affirmed by this appeal. The complaint is rather, that the offence here charged, to wit, murder, is not stated with the requisite certainty to meet the case made. The rules of criminal plead-, ing do not require that, in the description of the offence, intended to be charged, all the attending circumstances, which happen to distinguish the particular instance from others of the same offence, shall be set out in detail. Nor, although the fact of the prisoner’s guilty connection with the act which consummated the offence must be averred, is it required that the circumstances which constitute the particular manner of such connection shall appear on the record. It is only necessary to state those facts which are in law essential to constitute the particular offence charged, as in this case, such as are legally essential to the crime of murder. The fact that the killing occurred in the prosecution of a riot in which the prisoner was a party, although, where the mortal injury was not, or is not proved to have been, inflicted directly by himself, very necessary to be proved in order to evince his guilty concurrence in the act, is not of the essence of the crime, and, therefore, need not be stated in the indibtment. All who are present concurring in a murder are principals therein, and the death, and the act which caused it, is, in l$w, the act of each and of all. There is no distinction in the regard of the law, in the degrees of their guilt, or the measure of their punishment, or the nature of their offence, founded upon the nearness or remoteness of their personal agency respectively. An indictment charging it as the act of a particular individual of the party will be well sustained by evidence that any other of them gave the fatal stroke, or that it was given by some one of them, though it does not appear by which. Mackalley's case, 9 Coke, 67, b; Sissinghurst House case, Halé, 461; 1 Russel Cr. 537. Here the indictment charges that the wounds, &e., which caused the death, were inflicted by the prisoners, and there is quite enough in the evidence to sustain the charge in its literal import. But, if-there were nothing of this kind, and it appeared, or the jury believed from the evidence, that some other one of the rioters, whether known or unknown, in the prosecution of their common purpose, inflicted the wounds, &c., the. charge in its legal meaning would be well sustained. When it is said in the ■ books that besides the legal description of the offence, the manner of the death must be stated with exactness, it is only meant, that the particular mode of violence whereby the death was caused, whether by shooting, stabbing, beating, or striking, strangulation, poisoning, &e., must be set «forth, and not that the manner of the prisoner’s connection with the use of that violence shall appear on the record. The present is unquestionably a sufficient indictment for murder at common law. Nothing is omitted which it ought to contain. And there is entire legal conformity between the charge made therein, and the case presented by the evidence, whatever view it may be supposed to justify of the personal agency of the prisoners in the act of killing. The verdict finds that agency in the one way, or the other, directly or by concurrence.

The other ground of the motion complains that the presiding Judge did not, as requested, charge, that if the jury believed that the death was caused, not by “ bricks or stones cast or thrown ” by the prisoners, but “ by means of a crowd of persons beating and stamping the deceased on the ground or otherwise,” they should find the defendants “not guilty.” It may be the duty of the presiding Judge to present to the jury the various views that may be reasonably taken of the actual evidence, but it is certainly no part of his duty to go outside of the evidence to frame hypothetical cases or mere conjectures. The testimony in this case showed, beyond all shadow of controversy, that the death was caused by the “ wounds, bruises, fractures, and contusions,” inflicted on the head of the deceased by means of “ stones or bricks cast,” &c., or by kicking and stamping.” There was no possibility in the evidence of any “ otherwise.” And whether these wounds, &c., were inflicted by casting bricks, &e., or by stamping and kicking, the prisoners, either by their direct personal agency, or by their concurrence, in law inflicted them.

.The rule requires that the particular mode of violence by which the death was produced “ or the species of killing” shall be correctly stated in the indictment. And if one species of killing, as hy poisoning, be charged, and the evidence shows a totally different species, as by shooting, stoning, strangling, &e., the variance will be fatal. And so in the cases cited from Moody C. C. 113, 139, where the killing was charged to have been by mortal blows, &c., given by the prisoner, or by his striking with k brick, and it was proved that the death resulted not directly from the prisoner’s blows, but from wounds or injuries on the head of the deceased caused by his falling beneath the prisoner’s blows on the’ ground, or on a brick or stone, the death being the immediate consequence not of the blow, but of the fall and resulting hurt occasioned thereby. But if the death resulted from “ wounds, fractures,” &c., caused by strokes or blows, it is not necessary that they should be proved to have been inflicted by means of the particular instrument charged in the indictment to have been used therein. Train and Hard Prec. 216; Wharton’s Or. Law — Homicide, 1059; Mackalley's case, 9 Coke, 67, a. If in this case the “wounds, fractures,” &c., which caused death were inflicted by kicking and stamping or either, the allegation of the indictment is in law as well sustained as if they had been proven to have been inflicted by casting and throwing stones or bricks. Nor is it material that the evidence shows the mortal injury to have been upon a different part of the head from that alleged in the indictment. The rules of pleading require that the indictment shall state a particular means or instrument of death, (or else that it was by means or instrument unknown, if the fact be so; Webster's case, 5 Cushing, 295,) and also a particular part of the body, as the locality of the mortal injury. But it is not necessary that the proof should literally correspond. If the mode of applying the violence be the 'same in kind as described, it is enough, though the weapon or instrument used and the part of the body hurt be other than as averred.

Note. — The prisoner, Scipio Fraser alias John Williams, died in the goal of Charleston District, during the pendency of the appeal, as appears from the certificate of the Sheriff and the physician, filed with the record here.

The motion for a new trial is dismissed.

Dunkin, C. J., and Wabdlaw, A. J., concurred.

Motion dismissed.  