the parties acted entirely in self-defense, while the other assaulted and beat him, the aggressor may be guilty of an assault and battery, but neither of them guilty of an affray; and neither can be convicted on an indictment therefor; so that on the trial of an indictment for an affray, the aggressor is as much interested to show that both parties did not fight, as the innocent party is to show that fact; the defense of one enures to the benefit of the other. But it is said, there is no evidence that Hawkins, one of the defendants, fought at all, and that an affray cannot be committed by words alone. The evidence is, that an altercation took place between the parties in a public street in Milledgeville, at the instance of Hawkins, who first accosted Bonner. Bonner then drew his knife, cut at Hawkins. Hawkins then drew his knife from his pocket, but did not use it, being prevented by the bystanders. The drawing his knife and attempting to use it on that occasion, was an act quite significant of his intention, had he not been prevented from using it. The words alone of the parties, independent of their acts, would not have constituted an affray; but their words, accompanied by their acts respectively, in drawing their knives and attempting to use them, was calculated to terrify the good citizens of Milledgeville, and disturb the public tranquility. 1 Russell on Crimes 271.

Affirmed. Hawkins v. S., 13 Ga. 322, 58 Am. Dec. 517, Kn. 313. Prize fight: C. v. Colberg, § 28; S. v. Burnham, § 28.

UNLAWFUL ASSEMBLY, ROUT, AND RIOT.

§ 183. Defined and Distinguished. "Riots, routs, and unlawful assemblies, must have three persons at least to constitute them. An unlawful assembly is when three or more do assemble themselves together to do an unlawful act, as to pull down inclosures, to destroy a warren or the game therein, and part without doing it, or making any motion towards it. A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common or of way, and make some advances towards it. A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel: as if they beat a man; or hunt and kill game in another's park, chase, warren, or liberty; or do any other unlawful act with force and violence; or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner." 4 Bl. Com. 146.

(Ind. Sup. Ct., 1853.) Charivari. Indictment for riot under 2 R. S. (1852), p. 425, providing: "If three or more persons shall do an act in a violent and tumultuous manner, they shall be deemed guilty of a riot." Verdict, guilty; motion for new trial overruled; and on

exceptions the question was whether there was evidence to sustain the verdict. It was shown that defendants marched back and forth in the highway before the public house of J. Wise blowing horns, singing songs, and shouting, at night till two o'clock in the morning; but that they carried no weapons, and offered no violence. PERKINS, J. A great noise in the night-time, made by the human voice or by blowing a trumpet, is a nuisance to those near whom it is made. The making of such a noise, therefore, in the vicinity of inhabitants, is an unlawful act; and, if made by three or more persons in concert, is, by the statute of 1843, a riot. All these facts exist in the present case. Here was a great noise, heard a mile, in the night-time, made with human voices and a trumpet, in the vicinity of inhabitants. The requirements of the statute for the making out of the offense are filled. The noise was also made tumultuously. The act itself involves tumultuousness of manner in its performance. But it is said, here was no alarm or fear. The statute defining the offense says nothing about alarm or fear. In this case, however, it was only the witnesses who were not alarmed. Others within the distance of the mile in which the noise was heard, and who were not present to observe the actual condition of things, may have been, and doubtless were, alarmed; and the pedler was afraid his horses would be stolen. It is said the rioters were in good humor. Very likely, as they were permitted to carry on their operations without interruption. But with what motive were they performing these good-humored acts? Not, certainly, for the gratification of Wise and his family. They were giving them what is called a charivari, which Webster defines and explains as follows: "A mock serenade of discordant music, kettles, tin-pans, etc., designed to annoy and insult. It was at first directed against widows who married a second time, at an advanced age.' Judgment affirmed. Bankus v. S., 4 Ind. 114, Kn. 315. Liability of rioters for acts of opponents:

to create: Respublica v. Teischer, § 15.

C. v. Campbell, § 14. Number necessary

LIBEL.

§ 184. Defined, Etc.

*

(Conn. Sup. Ct. of Errors. 1828.) Letter Addressed to Person Libeled. Information for writing and sending a letter to a married woman insinuating libidinous conduct and soliciting adultery. Defendant moved in arrest of judgment after conviction, and asks the opinion of this court. PETERS, J. A libel is a malicious defamation of any person, made public by printing, writing, signs, or pictures, tending to blacken the memory of the dead, with intent to provoke the living, or injure the reputation of the living, provoke him to wrath, and expose him to hatred, contempt or ridicule. 1 Hawk. P. C. c. 73, §1; 4 Bl. Com. 150; Holt, Libel, 73; Hillhouse v.

Dunning, 6 Conn. 391. Is the writing in question a libel? It is a letter, addressed, by the defendant, to the wife of another man, stating she had "played peep-abo" with him long enough; by which the jury have found, that he meant, that she had acted libidinously towards him, and invited him to an adulterous intercourse and connection with her, and sought opportunities to effect it. It appears by the information, which the jury have found to be true, that the defendant composed and wrote the letter, and sent it to her, with intent to insult and abuse her, and to seduce and debauch her affections from her husband, entice her to commit adultery, and bring her into hatred and contempt. Adultery is a detestable crime, especially in a female; the most disgraceful a woman can commit; and is punished with great severity, by our law. St. 1821, tit. 22, § 62. To say of a woman, falsely and maliciously, that she has committed this crime, is a gross slander. To say that she is running about the country seeking opportunities to commit adultery, renders her more contemptible and ridiculous than the crime itself; and to publish such a story, by printing or writing, is a libel. But a libel is a high misdemeanor; and it may be laid down as law, in all cases, that the allegation of an act, which the law recognizes and punishes as a crime, is libelous. Holt, Libel, 188, 189; R. v. Wilkes, 2 Wils. 151. It is said, that the letter in question is not a libel, because it was not published, by the defendant. But it is well settled, that the sending of a letter to the party, filled with abusive language, is an indictable offense, because it tends to a breach of the peace. has, indeed, been a matter of doubt whether the sending of such a letter to another would support an action for a libel, because there was no publication. But the sending of such a letter, without other publication, is clearly an offense of a public nature, and punishable as such, as it tends to create ill-blood, and cause a disturbance of the public peace. Holt, Libel, 239; 2 Swift, Dig. 341; 1 Hawk. P. C. lib. 1, c. 73, § 11: Bac. Abr. tit. "Libel," B; Wooton v. Edwards, Poph. 140; Hicks's Case, Hob. 215. * * Motion in arrest overruled. S. v. Avery, 7 Conn. 266, 18 Am. Dec. 105, F. 149.

It

A common law crime in America: C. v. Chapman, § 5; S. v. Pulle. § 7. Not an offense punishable in U. S. courts: U. S. v. Hudson, § 2. Liability of publishers of papers and magazines for matter not known by them to be in paper: R. v. Almon, $81. Written out of jurisdiction punishable where published: R. v. Johnson, § 87; C. v. Blanding, § 87. Obscene publication as criminal libel: R. v. Curl, § 19.

CHAPTER XI.

OFFENSES AGAINST GENERAL WELFARE-PUBLIC
MORALS, SAFETY, HEALTH AND COMFORT.

§ 185. General Statement, 558.

ABORTION.

§ 186. In General, 559.

BIGAMY OR POLYGAMY.

§ 187. Defined, etc., 559.

ADULTERY.

§ 188. In General, 560.

MISCEGENATION.

§ 189. Defined, 561.

INCEST.

§ 190. Defined, etc., 561.

SODOMY OR BUGGERY.

§ 191. Defined, 562.

ABDUCTION.

§ 192. In General, 562.

SEDUCTION.

§ 193. General Statement, etc., 565.

FORNICATION.

§ 194. Defined, 568.

UTTERING AND PUBLISHING OBSCENE OR PROFANE LANGUAGE.

§ 195. In General, 568.

NUISANCE.

§196. Definition, 570.

§ 197. "By Act or Neglect Creates a Condition of Things Prejudicial," 570.

§ 198. "Safety," 572.

§ 199. "Business," 572.

§ 200. "Health," 574.

$201. "Comfort," 575.

§ 202. "Morals or Outraging the Sense of Decency," 579.

§ 185. General Statement. As immorality tends to undermine the foundations of society its worst forms are criminal as endangering the public. Immoral conduct in public is criminal for the further reason that it outrages the public sense of decency. On both of these grounds the maintenance of any condition of things destructive of public safety or comfort is criminal. The principal crimes of this kind are: Abortion, bigamy or polygamy, adultery, miscegenation, incest, sodomy or buggery, abduction, seduction, illicit cohabitation, fornication, indecent exposure of person, uttering and publishing obscene and profane language, and nuisance. Let us observe some of these more particularly.

ABORTION.

§ 186. In General.

(Pa. Sup. Ct., 1850.) Before Quickening. An indictment for causing miscarriage of a woman was sustained against objection that it should have charged the miscarriage of the child, because the act is rightfully predicated of the woman; and against objection that it did not charge that the woman had become quick, because that is not essential to the crime. "It is not the murder of a living child, which constitutes the offense, but the destruction of gestation, by wicked means and against nature. The moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated. The allegation in this indictment was therefore sufficient, to-wit: 'that she was then and there pregnant and big with child.'"' Per COULTER, J. Affirmed. Mills v. C., 13 Pa. St. 631, Kn. 335, Mi. 536.

BIGAMY OR POLYGAMY.

§ 187. Defined, Etc. Bigamy is entry into marriage by one having another spouse living; and this is felony by St. 1 Jac. 1, c. 11; and by some American statutes it is felony, by others a misdemeanor.

(Mich. Sup. Ct., 1876.) Second Marriage Otherwise Void. COOLEY, C. J. The defendant seeks to avoid the penalties of a bigamous marriage by showing that he is a negro, and that the other party to the marriage was a white woman, with whom, under the statute, it was impossible for him to contract marriage at all. Comp. L., § 4724. The argument is, that if the ceremony of marriage has taken place between parties who, if single, would be incapable of contracting marriage, the marriage ceremony is merely idle and void, and the respondent cannot be said to have been married the second time at all. The logic of the argument is not very obvious. It certainly cannot be based upon any idea that there must be something of binding and obligatory force in the second marriage; for every bigamous marriage is void, and it is the entering into the void marriage while a valid marriage exists that the statute punishes. Nor can we understand of what importance it can be that there are two elements of illegality in the case instead of one, or why the party should be relieved from the consequences of violating one statute because the act of doing so was a violation of another also. The authorities sanction no such doctrine. * Judgment