SECTION IV. Riot. Indictment. The jurors for our Lady the Queen, upon their to wit oath present, that A. B., E. F., G. H., and I. K., together with divers other evil-disposed persons to the jurors aforesaid unknown, on the day of in the year of our Lord, with force and arms, to wit, with sticks, staves, and other offensive weapons, unlawfully, riotously, routously, and tumultuously did assemble and gather together, to disturb the peace of our Lady the Queen; and did then unlawfully, riotously, routously, and tumultuously make a great noise, riot, tumult, and disturbance, to the great terror and disturbance, not only of the liege subjects of our Lady the Queen there being and residing, but of all other of the Queen's liege subjects then passing in and along the Queen's common highway there; and being so assembled and gathered together as aforesaid, they the said A, B., E. F., G. H., I. K., and the said other evil-disposed persons aforesaid did then unlawfully, riotously, routously, and tumultuously [make an assault upon C. D., and him the said C. D. did then unlawfully, riotously, routously, and tumultuously beat, wound, and illtreat, and other wrongs to the said C. D. unlawfully, riotously, routously, and tumultuously then did, stating the act done, as the case may be]: against the peace of our Lady the Queen, her crown and dignity. [If the act so riotously effected, be prohibited or punishable by statute, it may be prudent to conclude contra formam statuti. Add a count for the act done, if it be an indictable offence. Misdemeanor; imprisonment, [and (if the court think fit) hard labour; 3 G. 4, c. 114, ante, p. 183;] or fine, or both. Costs, ante, p. 187. Evidence. A riot is a tumultuous disturbance of the peace, by three persons or more assembling together of their own authority, with an intent mutually to assist one another against any one who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act itself were lawful or unlawful. 1 Hawk, c. 65, 8, 1. To maintain this indictment, therefore, the prosecutor must prove 1. The assembly:-that the defendants, or the defendants and others, to the number of three at the least, assembled together of their own authority. It is immaterial, however, whether a defendant was one of the party first assembled, or whether he joined that party afterwards during the progress of the riot, and took part in it; in either case he is equally guilty. Hawk. c. 65, s. 3. 2. That they so assembled together, with intent to execute some enterprise of a private nature, and also mutually to assist one another against any person who should oppose them in doing so. The intent is proved in this, as in every other case, by proving facts from which the jury may fairly presume it. See ante, pp. 119, 120. The actual execution of the enter prise charged in the indictment, is abundant proof of their previous intention to execute it. So, their intention mutually to assist each other, may be inferred either from their afterwards actually assisting each other, or from their exclamations or actions, &c., whilst so assembled. See R. v. Hunt, 3 B. A. 566. And the injury or grievance complained of, and intended to be revenged or remedied by such an assembly, must relate to some private matter or quarrel only, such as the inclosing of lands in which the inhabitants of a particular town have a right of common, or gaining the possession of lands, the title to which is in dispute, or the like; for wherever the intention of such an assembly is to redress public grievances, as to pull down all inclosures generally, to reform religion, to remove evil counsellors from the Queen, &c., if they execute such their intentions with force, this would be a levying of war against the Queen, and treason. 1 Hawk. c. 65, 8. 6. Also, as to the act to be done, it is immaterial whether it be lawful or unlawful: as for instance, it is lawful to abate a nuisance, if done peaceably; but if three or more join in doing it in a violent and tumultuous manner, it is a riot; for the law will not suffer persons to seek redress of their private grievances by such dangerous disturbances of the public peace. 1 Hawk. c. 65, 8. 7. It seems agreed, however, that if a number of persons, having met together at a fair or market, or on any other lawful or innocent occasion, happen on a sudden quarrel to fall out, they are not guilty of a riot, but of a sudden affray only, of which none are guilty but those who actually engage in it; because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly without any previous intention concerning it. 1 Hack. c. 65, s. 3 Yet it is said, that if persons innocently assembled together, do afterwards, upon a dispute happening to arise among them, form themselves into parties, with promises of mutual assistance, and then make an affray, they are guilty of a riot, because upon their confederating together with an intention to break the peace, they may as properly be said to be assembled together for that purpose from the time of such confederacy, as if their first coming together had been on such a design. Id. However, it seems clear, that if, in an assembly of persons met together on any lawful occasion, a sudden proposal should be stated of going together in a body to pull down a house or inclosure, or to do any other act of violence, to the disturbance of the public peace, and such motion be agreed to, and executed accordingly, the persons concerned cannot but be rioters, because their associating themselves together for such a new purpose, is in no way extenuated by their having met at first upon another. 1 Hawk. c. 65, s. 3. 3. That they actually executed the enterprise intended. If not executed, the assembly would not in law amount to a riot, but to an unlawful assembly or rout only :—an unlawful assembly, where the enterprise is merely contemplated, but nothing further done for the purpose of carrying it into execution;-a rout where the enterprise is not only contemplated, but the parties take some steps for the purpose of carrying it into execution; 1 Hawk, c. 65, 88. 8, 9; it is a riot only where what was contemplated is actually carried into execution. And the execution of such enterprise must be attended with such circumstances, either of actual force or violence, or at least of an apparent tendency thereto, as are naturally calculated to strike terror into the people: as the show of armour, threatening speeches or turbulent gestures; for every such offence must be laid to be done in terrorem populi; 1 Hawk. c. 65, s. 5, and see s. 4; otherwise the defendants cannot be convicted of a riot, R. v. Hughes, 4 Car. § P. 373, although they may of an unlawful assembly, R. v. Cox et al., Id. 538. And it seems that where three persons or more use force and violence in the execution of any design whatever, wherein the law does not allow the use of such force, all who are concerned therein are rioters. 1 Hawk. c. 65, s. 2. On the other hand, three or more persons may assemble, for the purpose of executing a wrongful act, and actually execute it, without being rioters, if they do it without threats or circumstances of terror. Id. s. 5. If you fail in proving the assault, or other act intended, the defendants, it seems, may still be convicted of an unlawful assembly. R. v. Birt et al., 5 Car. § P. 154, R. v. Cox et al., 4 Car. & P. 373. If two only be convicted, no judgment can legally be given unless the indictment charge them with having committed the offence together with other persons to the jury unknown; for unless three persons were concerned in it; it could not be a riot. 2 Hawk. c. 47, s. 8. But where six were indicted, and two died before trial, two were acquitted, and the remaining two found guilty, it was holden sufficient; for as the jury found them guilty, it must be presumed that they committed the offence with one or both of the defendants who died, for other wise they could not have been found guilty of a riot. R. v. Scott and Hans, 3 Burr. 1262. As to the apprehension of the offenders, in case of riot, see ante, p. 23; and the like after the Riot Act, or rather the proclamation, read, ante, p. 25. Opposing the reading of the proclamation is felony, 1 G. 1, st. 2, c. 5, s. 5, and punishable with transportation for life or not less than fifteen years, or imprisonment [with or without hard labour, and solitary for not more than a month at a time, or three months in a year], for not more than three years. 1 Vict. e. 91, ss. 1, 2. And twelve or more of the rioters, riotously and tumultuously remaining together for one hour after proclamation, is also a felony, 1 G. 1, st. 2, c. 5, 88. 1, 5, and punishable in like manner. I Vict. c. 91, ss. 1, 2. SECTION V. Perjury. In what cases Prosecution ordered. By stat. 14 & 15 Vict. c. 100, s. 19, "it shall and may be lawful for the judges or judge of any of the superior courts of common law or equity, or for any of Her Majesty's justices or commissioners of assize, nisi prius, oyer and terminer, or gaol delivery,-or for any justices of the peace, recorder or deputy-recorder, chairman, or other judge, holding any general or quarter sessions of the peace, or for any commissioner of bankruptcy or insolvency, or for any judge or deputy-judge of any county court or any court of record, or for any justices of the peace in special or petty sessions, or for any sheriff or his lawful deputy before whom any writ of inquiry or writ of trial from any of the superior courts shall be executed,-in case it shall appear to him or them that any person has been guilty of wilful and corrupt perjury in any evidence given, or in any affidavit, deposition, examination, answer, or other proceeding made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to him or them a reasonable cause for such prosecu tion, and to commit such person so directed to be prosecuted until the next session of oyer and terminer or gaol delivery for the county or other district within which such perjury was committed, unless such person shall enter into a recognizance, with one or more sufficient surety or sureties, conditioned for the appearance of such person at such next session of oyer and terminer or gaol delivery, and that he will then surrender and take his trial, and not depart the court without leave,—and to require any person he or they may think fit to enter into a recognizance, conditioned to prosecute or give evidence against such person so directed to be prosecuted as aforesaid,-and to give to the party so bound to prosecute a certificate of the same being directed, which certificate shall be given without any fee or charge, and shall be deemed sufficient proof of such prosecution having been directed as aforesaid ;-and upon the production thereof the costs of such prosecution shall and are hereby required to be allowed by the court before which any person shall be prosecuted or tried in pursuance of such direction as aforesaid, unless such last-mentioned court shall specially otherwise direct: provided always, that no such direction or certificate shall be given in evidence upon any trial to be had against any person upon a prosecution so directed as aforesaid." Indictment. By stat. 14 & 15 Vict. e 100, s. 20, “in every indictment for perjury,-or for unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly taking, making, signing, or subscribing any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court or before whom the oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, was taken, made, signed, or subscribed,-without setting forth the bill, answer, information, indictment, declaration, or any part of any proceeding either in law or in equity,—and without setting forth the commission or authority of the court or person before whom such offence was committed." And the substance of the offence is, that in a judicial pro ceeding, before a court having jurisdiction,-and before a person having authority to administer an oath,-the party wilfully made oath,-to a statement of a material fact,-which statement was false. See 3 Inst. 164. In this order I shal |