Howell v. State

Wade, J.

1. The instruction to the jury in the terms of section 360 of the Penal Code, that "if two or more persons do an unlawful act of violence,-or any other act in a violent or tumultuous manner, they shall be guilty of riot,” is not error for the reason assigned, that the accused was charged only with a violation of one branch of that section, to wit, “any other act in a-violent and tumultuous manner” and not “an unlawful act of violence.” The accusation charged that on a day named the defendant and certain other persons did “unlawfully, and with force and arms, commit the following acts in a violent and tumultuous manner,” and thereafter recited the particular acts so committed. The accusation as a whole, measured by the rule laid down in Green v. State, 109 Ga. 536, 539 (35 S. E. 97), and Taylor v. State, 8 Ga. App. 241, 242 (68 S. E. 945), sufficiently charged the commission of “an unlawful act of violence” to authorize the instruction complained of.

Decided April 17, 1916.

Accusation of riot; from city court of Columbus — Judge.Tigner. October 23, 1915.

Ed. Wolilwender, for plaintiff in error. T. n. Fort, solicitor, contra.

2. The specific acts alleged in the accusation were set forth with sufficient particularity to put the defendant on notice of the charge he was called upon to meet; and the court properly overruled the demurrer.

3. The remaining assignments of error, in view of the foregoing rulings, are without substantial merit; the evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Russell, O. J., absent.