
    Wininger and Others v. The State.
    Whore an assault and battery is riot the gravamen of, but merely an incident occurring at a riot, a final judgment in the prosecution for one of the offenses may not be a bar to a prosecution for the other.
    APPEAL from the Martin Court of Common Pleas.
   Hanna, J.

This was a prosecution for a riot. Trial by the Court; finding of guilty, and judgment, over a motion for a new trial.

The evidence is in the record, and, upon the part of the state, was sufficient to authorize the finding; but the witness, without objection, stated that the defendants had each been fined three dollars, by a justice, for the same act, upon a prosecution for an assault and battery. It is further shown, by the bill of exceptions, that during the trial “it was admitted before the Court, by the prosecuting attorney, that all of the defendants had been legally tried for the same act, upon a charge of an assault and battery, before a justice of the peace, and had been fined the sum of three dollars each, and that said judgment had not been reversed,” &c. The bill of exceptions further states that the Court found the defendants guilty, notwithstanding the admission, for the reason that the prosecution for the riot was not for the same offense, and that the defendants might be guilty of a riot and an assault and battery, by the same act. This is the only point in the case. There is thought to be a conflict' in the decisions of some of the sister states upon-this subject.

We think the true rule, in prosecutions for offenses of this character, is, that where the gravamen of the riot consists in the commission of an assault and battery, then, a conviction for that assault, &c., would be a bar to a prosecution for a riot; but where the commission of an assault and battery was merely incidental to the riot, then a conviction for the one would not bar a prosecution for the other; as in an instance where several should riotously attempt to tear down a house, and, in that attempt, the owner of the house, in the defense thereof, should be assaulted, &c. Here the purposed and main offense would be, the demolition of the house, but at the same time the parties might, in the perpetration of that offense, commit other unlawful acts for which a prosecution could be maintained, as well as for the riot.

The question would be, is the one act included in the other?

In the case at bar, although the Court below held it was not the same offense, we are informed it was all the same act, and the evidence shows the gravamen of the riot was the assault and battery. The judgment must, therefore, be reversed.

A. I. Simpson, for the appellants.

J. E. McDonald, Attorney General, and A. L. Roadie, for the state.

Per Curiam.

The judgment is reversed. Cause remanded, &c.  