Proctor v. State

DCYDE,-Judge

(after stating the facts as above). Counsel for plaintiff in er-ror contend that there is no testimony tending to prove the commission of the crime of riot, and that the testimony tends only to show the commission of a misdemeanor, for which offense the district court of Adair county did not have jurisdiction.

The provisions of the statute dealing -with the subject of riot are as follows:

“Sec. 2497 (Snyder’s Sts.). Any use of force or violence, or any threats to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.

“Sec. 2498. Every person guilty of participating in any riot is punishable as follows: 1st. If any murder, maiming, robbery, rape or arson was committed in the course of such riot, such pei'-son is punishable in the same manner as a principal in such crime. 2nd. If the purpose of the riotous assembly was to resist the execution of any statu e of this state or of the United States, or to obstruct any public officer of this state or of the United States, in the performance of any legal duty, or in serving or executing any legal process, such person is punishable by imprisment in the state prison not exceeding ten years and not less than two. 3rd. If such person carried at the time of such riot, any species of firearms, or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in a state prison not exceeding ten years and not less than two. 4th. If such person directed, advised, encouraged or solicted other persons, who participated in the riot, to acts of force or violence, he is punishable by imprisonment in the state prison for not less than three-years. 5th. In all other cases such person is punishable as for a misdemeanor.

“Sec. 2499. Whenever three or more persons acting together, make any attempt to do any act toward the commission of an act which would be riot if actually committed, such assembly is a riot.

“Sec. 2500. Wherever three or more persons assemble with intent or with means and preparations to do an unlawful act which would be riot if actually committed, but do not act toward the commission thereof, or whenever such persons assemble without authority of law, and in such a manner as is adapted to disturb the public peace, or excite public alarm, such assembly is an unlawful assembly.

“Sec. 2501. Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.”

Under the statute a riot cannot be committed by one person alone, or two persons acting together; there must be three or more persons acting together, and without authority of law. Therefore, in order to make out a case of riot, it was incumbent upon the state to prove, beyond a reasonable doubt, that there wore three or more of the defendants acting together, and without authority of law; that the three or more defendants, without authority of law, used force or violence, or threatened to use force or violence, which threats were accompanied by immediate power of execution, and that they so acted together.

There is a total absence of testimony that the defendants named ever assembled or confederated to violate the law, or that they acted in concert, or acted together. To render persons guilty of riot, they must act in concert, and it must be proved that at least three persons were engaged in the unlawful act. ■While the conduct of some of the defendants was reprehensible, to say the least, we cannot, as a matter of law, say that the evidence tends to prove the crime of riot. The evidence only tends to prove a violation of section 2505, Snyder’s Statutes, which reads as follows:

“Every person who resists, or enters into a combination with any other person to resist the execution of any legal process, under circumstances not amounting to a riot, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or both.”

The evidence in this case tending only to prove the commission of a misdemeanor, we are clearly of the opinion that the district court was without jurisdiction. As this conclusion necessitates a reversal of the judgment it is not necessary that we shall consider the various other assignments of error presented in the record.

The judgment of the district court of Adair county is hereby reversed, and the cause remanded, with instructions to proceed in accordance with the views herein expressed.

FTJEMAN, PresidiNG Judge, and ARMSTRONG, Judge, concur.