
    
      The State vs. Samuel Sumner, William Faucet and W. G. Scales.
    
    I. Defendatns were indicted and convicted of a riot. Two of them had staked money, and were about engaging in a prize fight. On the interference of a magistrate, one of the combatants was willing to desist, but one of the defendants, acting as second to one of the parties, insisted that they should fight, if they choose. The magistrate retired, but the tumult being renewed, he caused the proposed combatants to be arrested, and brought before him to give bonds to keep the peace. The second who had insisted on the fight, came to the office of the magistrate, and exhorted I,he party for whom he was to act not to give bond, whereupon, after making some resistance, he was arrested and committed. Held, that defendants were guilty of a rout, and that the general verdict of guilty, was sufficient, though the evidence only established that they were guilty of rout or unlawful assembly.
    
      Before Butler, J. Union, March Term, 1842.
    The defendants were indicted and convicted of a riot. The facts upon which the defendants were convicted, came out from the evidence of Gen. Daniel Wallace, an acting justice of the peace. He said that in going down the main street of Union village, on sale day, he heard a great tumult, was informed that a prizefight was about to take place, between Scales and Faucet, for $100 a side— The heads of the combatants had been closely shaved and the money staked — The crowd was very much excited, and the witness said he never saw such a tumultuous meeting in the streets. He, as a peace officer, interposed and said the fight should not take place — Scales was willing to submit to the suggestion, and gave up the combat —Sumner, who was acting as the second of Faucet, said he should fight if he chose, and that they should not interfere or crowd upon him. The witness went into his office, under the impression that the fight would be given over; but in a short time, the tumult increased, and arrangements were making for the parties to engage — one Farr acting as second of Scales, and Sumner as the second of Faucet. At this point of time, the witness had Scales and Faucet arrested and brought before him to enter into bonds to keep the peace — Sumner thrust his head in the office and said to Faucet, ‘‘go to jail rather than give bond —the witness said “there is room for you”- — Sumner replied “commit and be damned” — whereupon he was arrested, after making some resistance, and committed.
    The presiding Judge defined the offence of riot and left the case to the jury — and they found the defendants guilty.
    Defendants appealed, on the following grounds.
    1. Because his Honor, the presiding Judge, charged the jury that the defendants shaving their heads in preparation for combat might be considered by them an act sufficiently unlawful, when acting in concert, to constitute a riot.
    2. Because no overt act was proved to have been committed by the defendants, nor was there any concert of action between the defendants Scales and Sumner proved on the trial.
    
      Goudelock, for the motion.
    Dawkins, Sol. contra.
    Cited Rice Rep. 521; Archbold Crim. Plead. 446; 1 Speer’s Rep. 13.
   Curia, per

Evans, J.

A riot is defined by Russell and other writers on criminal law7, to be a tumultuous meeting of three or more persons upon some common purpose, to do an unlawful act, which they actually execute with violence. A rout is a similar meeting, and differing from a riot only in this, that they do not actually execute their purpose, but only make some motion towards its execution. These parties had no doubt assembled with a common intent to commit a breach of the peace. Preparations had been made for the combat, and blow7s only were necessary to constitute the offence of riot, beyond all doubt. What degree of execution of their purpose will convert a rout into a riot, it may be often difficult to determine. But this case does not require any such distinction to be made. The preparation for battle, the staking the money, will clearly make them guilty of a rout. These, as was said in the State vs. Brazil and others, Rice Rep, 257, are kindred offences, the lesser is included in the greater, and a general verdict of guilty is sufficient, though the evidence establishes no more, than that they were guilty of rout or unlawful assembly. The motion is dismissed.

Richardson, O’Nrall, Fyan§; Warpraw, and Frost, JJ. concurred.  