
    The State vs. George Blair.
    
      Biot — Evidence—Neighborhood road.
    
    On an indictment charging a riot as having been committed by defendant with three of his slaves named and others of his slaves unknown, a conviction, on proof that the riot was committed by defendant in combination with several of his slaves, but one of those named being-proved to have been present, will be good..
    A charge that some of the rioters are unknown is a negative averment and need not be proved — the onus of disproving it being on the defendant.
    It is not necessary to the consummation of a riot that the act of the rioters should be in fulfilment of an unlawful purpose.
    Can a passenger along a neighborhood road of a public character, which is foundrous, turn upon the soil of a neighboring proprietor ? Semble, That he can.
    One who begins a riot, but leaves before it is over, is responsible for all acts done in completion of the offence.
    BEFORE GLOVER, J., AT NEWBERRY, FALL TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendant was convicted of a riot. Alfred J. Oxner was passing, with his wagon, servant and two mules, along a public neighborhood road at night, which was on defendant’s land for about a mile, and along which defendant had placed four gates, fastened in such way as to be inconvenient in the opening. A part of the way- — about one hundred and fifty-five steps — had become impassable, and the neighbors for some time before had used a track adjoining the road, the two tracks not exceeding twenty-five feet. When the wagon was within about twenty feet of the new track, but still in the established way, the defendant suddenly approached, and the driver stopping the mules, Oxner inquired, 'What does this mean?’ Defendant replied, 'To make you keep the sworn track.’ Oxner ordered his servant to drive on, when defendant struck the mules. He then got up to drive himself, and defendant said he would put a hole through him. Oxner then sent for his wife, and gun, and boys. Defendant went and returned with three of his negro fellows and a double-barrelled gun, which he recapped, and immediately after defendant’s daughter and more of his negroes came. After some altercation, defendant went with his daughter to the house, leaving his three negro men and negro women, and as Oxner would attempt to turn his mules into the new track one negro man would seize the mule and the other the wagon wheel. Following the advice of one Pollock, and finding it fruitless to attempt to advance, Oxner returned. The feet of one mule, led by Mrs. Oxner, were beyond the bed of the old road, when defendant’s negro would force him back into the road.
    “ The proof was, as the indictment alleged, that the negroes belonged to defendant; but the name of none except Sam was proved. I instructed the jury, that if defendant acted in concert with, and impelled, his negroes to acts of violence calculated to produce terror, he might be guilty of riot, and I did not think it necessary that the names of the negroes should be proved. It appeared to me enough to prove that defendant and two or more of his slaves committed the riotous acts.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds, to wit:
    1. That although the indictment alleged the presence of Sam, Hamp and John, negroes of Blair, no proof was made of the presence of any one known but Sam; and that, therefore, the allegation of the indictment was not sustained.
    
      2. That other negroes than Sam, alleged to be unknown and to have been present at the commission of the act, were not proved to be unknown.
    3. That his Honor, the presiding Judge erred, as is respectfully submitted, in stating to the jury that Oxner, the prosecutor, was not trespassing on the land of Blair at the commission of the act charged, when it was in proof that the forefeet of the right hand mule were upon the soil of Blair, •and that constant effort was made to go out into the new track admitted to be on Blair’s land.
    4. That his Honor erred, as is respectfully submitted, in charging that the defendant, Blair, could be constructively present, so as to be party to a riot, when it was in proof that he was absent at the commission of the act complained of.
    5. That no riot was committed; because the act complained of (if committed at all) was committed by two persons, in the absence of Blair, the defendant.
    6. That the verdict was contrary to the law and the evidence in this case.
    
      Nance, Simpson, for appellant.
    
      Fair, solicitor, contra.
   The opinion of the Court was delivered by

Wabdlaw, J.

So far as we can judge of the allegations of the indictment in this case without a copy of it or any precise report of its contents, it seems that defendant was charged for riot in combination with three of his slaves by name, and with other of his slaves whose names are unknown. The allegation is clearly sufficient, so that there can be no arrest of judgment. It is said in State vs. Calder, 2 McC. 462, if it be charged in the indictment, there were other persons concerned who were unknown, the conviction is good.” While, however, no complaint is made as to the form of the indictment here, the first two grounds of appeal rely on the defectiveness of the proof, inasmuch as one only of the three slaves named was proved to be present, and it was not proved that the names of other slaves present were unknown. It has been settled in this State since State vs. Thackam, 1 Bay, 358, that slaves may be persons to fill up the number of three necessary to constitute a riot, and we do not feel at liberty to contest this principle now, however debatable originally. It is certainly not necessary to the conviction of some of the rioters charged that the presence and conspiracy of all charged should be proved; and the allegation that persons unknown were present is a negative statement which must be disproved. It is said in the case of State vs. Oalder, supra, that the allegation that rioters unknown were present must be proved, but this can legitimately mean nothing more than that it must be proved according to the nature of the allegation. A negative is insusceptible of precise proof, and usually allegation of a negative without disproof is adequate evidence of the statement. After verdict, and without pretence of proof to the contrary, we must presume that the names of other rioters were unknown.

If the Judge charged as alleged in the third ground, we should not hold his instruction to be erroneous. It is not necessary to the consummation of a riot that the act of the rioters should be in fulfilment of an unlawful purpose. But if it were necessary to decide any thing on this point, we should at least hesitate to pronounce that the' right of a wagoner to turn upon the soil of a neighboring proprietor where the road was foundrous, clear in case of highways, may not be exercised as to neighborhood roads of a public character.

On the fourth and fifth grounds, we should hesitate to decide that one who advises, directs and compels a riot might not be properly convicted, although he does not add his physical force in the actual commission of the offence; but here it is not necessary to decide any thing on this point, for the defendant was present at the beginning of the riot, and by his violent and tumultuous acts of striking the mules of prosecutor, threatening to shoot him, and capping his own gun, made himself responsible for the acts in completion of the offence begun by himself. The whole transaction was a continuing outrage of the law, and the defendant should not escape because he may not have been personally present when his negroes by his orders, as must be presumed, seized the wheels of prosecutor’s wagon.

Ordered that the appeal be dismissed.

O’Neall, 0. J., and Johnstone, J., concurred.

Appeal dismissed.  