an assault, and her the said C. D. then and there did beat, wound, and ill-treat, with intent [" here state the felony intended; as for instance: with intent" her the said C. D., then and there, violently and against her will, feloniously to ravish and carnally know." See 2 Arch. P. A. 150;] and other wrongs to the said C. D. then and there did: to the great damage of the said C.D., against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. Add a count for a common assault. Misdemeanor: imprisonment, with or without hard labour, for not more than 2 years, and the Court may also fine the offender, and require him to find sureties for keeping the peace. 9 G. 4, c. 31, s. 25. Evidence. To maintain this indictment, it is necessary to prove an attempt to commit the felony alleged to have been intended; it must appear to have been done under such circumstances, that if the attempt had succeeded, the prisoner would have been guilty of, and might be indicted for, the felony described. And the felony, so described and proved, must be an offence against the person of the party said to be assaulted; for an attempt to commit any other offence, is not in law an assault. If you prove an assault, but fail in proving the intent, the party may still be convicted on the second count, as for a common assault. Where, upon an indictment against a schoolmaster, for an assault with intent to commit a rape upon one of his female scholars, with a second count for a common assault, it appeared from the evidence that he did not actually attempt to commit a rape, nor perhaps intend it, but he had taken most indecent liberties with the person of the girl, and without her consent, although she did not actually offer resistance: the judges were of opinion that the evidence was fully sufficient to support the count for a common assault, although not for the assault with intent to commit a rape. R. v. John Nichol, R. & Ry. 130. See also R. v. Rosinski, Ry. & M. 19. R. v. Butler, 6 Car. & P. 368. in the 18. Indictment for a Riot and Assault, &c. Berkshire to wit: The jurors for our Lord the King upon their oath present, that A. B., late of the parish of county of Berks aforesaid, labourer, C. D. late of the same place, yeoman, E. F. late of the same place, carpenter, and G. H. late of the same place, blacksmith, together with divers other evil-disposed persons to the jurors aforesaid unknown, on the first day of October, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, defender of the faith, with force and arms, to wit, with sticks, staves, and other offensive weapons, at the parish aforesaid, in the county aforesaid, unlawfully, riotously, routously, and tumultuously did assemble and gather together, to disturb the peace of our said Lord the King; and being so assembled and gathered together as aforesaid, in and upon one J. K., in the peace of God and of our Lord the King then and there being, unlawfully, riotously, and routously did make an assault, and him the said J. K. then and there unlawfully, riotously, and routously did beat, wound, and ill-treat, and other wrongs to the said J. K. unlawfully, riotously, and routously did: and also whilst so assembled and gathered together, did then and there unlawfully, riotously, routously, violently, and tumultuously make a great noise, riot, tumult, and disturbance, and did then and there unlawfully, riotously, routously and tumultuously stay and continue making such noise, riot, tumult, and disturbance for a long space of time, to wit, for the space of [two] hours then next following, to the great terror and disturbance, not only of the liege subjects of our Lord the King there being and residing, but of all other of the King's liege subjects then and there passing in and along the King's common highway there: in contempt of our said Lord the King and his laws, to the great damage of the said J. K., and against the peace of our Lord the King, his crown and dignity. Misdemeanor: imprisonment, and (if the Court think fit) hard labour, 3 G. 4, c. 114; or fine; or both. 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 intended were of itself lawful or unlawful. 1 Hawk. c. 65, s. 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. 1 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 in this, as in every other case, is proved, by proving facts from which the jury may presume it. The actually executing the enterprise 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. & Ald. 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 whereever 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 King, &c., if they attempt to execute such their intentions with force, this would be a levying of war against the King, and high treason. 1 Hawk. c. 65, s. 6. Also, as to the act intended 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, s. 7. It seems agreed, that if a number of persons, having met together at a fair or market, or 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 Hawk. 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 started 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 no way extenuated by their having met at first upon another. 1 Huwk. c. 65, s. 3. 3. That they actually executed the enterprise intended. If not executed, the assembly would not amount in law 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 towards carrying it into execution; 1 Hawk. c. 65, s. 8, 9; it is a riot, only where what was contemplated is actually carried into execution. Aud 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. See also R. v. Hughes, 4 Car. & P. 373. R. v. Cox et al. Id. 538. And it seems that wherever 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. Id. 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 other circumstances of terror. Id. s. 5. If you fail in proving the assault, the defendants may still be convicted of the riot and tumult charged in the indictment, if the facts warrant such a verdict. Or if you fail in proving that the act contemplated was actually carried into execution, the defendants it seems may be found guilty of an unlawful assembly. R. v. Birt et al. 5 Car. & P. 154. If two only are 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 be no 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 oflence with one or both of the defendants who died, for otherwise they could not have been found guilty of a riot. R. v. Scott & Hans, 3 Burr. 1262. 19. Indictment for Forcible Entry. Berkshire to wit: The jurors for our Lord the King upon their oath present, that before and at the time of the committing of the offence hereinafter mentioned, one C. D. was possessed of a certain dwelling-house with the appurtenances, situate and being in the parish of in the county of Berks aforesaid, for a certain term of years, then and still unexpired; and the said C. D. being so possessed, one A. B. late of the parish aforesaid, in the county aforesaid, labourer, afterwards, to wit, on the first day of August, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, defender of the faith, at the parish aforesaid in the county aforesaid, into the said dwelling-house with the appurtenances there situate, with force and arms and with a strong hand, unlawfully and forcibly did enter, and the said C. D. from the peaceable possession of the said dwelling-house and appurtenances then and there with force and arms and with strong hand unlawfully did expel and put out; and the said C. D., being so unlawfully expelled and put out from the said dwelling-house and appurtenances as aforesaid, he the said A. B. from the day and year aforesaid until the day of the taking of this inquisition, from the said dwelling house with the appurtenances aforesaid, with force and arms and with strong hand unlawfully and injuriously then and there did keep out, and still doth keep out: to the great damage of the said C. D., against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. If committed by three or more persons, they may in general be indicted as for a riot; and where the facts will warrant it, it may be advisable to add a count for a riot, as a riot is one of the misdemeanors in which costs are allowed. Imprisonment, and ransom at the King's will; 5 Ric. 2, c. 7; and the property to be restored to the prosecutor, 8 H. 6, c. 9, s. 10, even although he held as tenant to the defendant, 21 Jac. 1, c. 15, provided the defendant have not been in peaceable possession of the premises three years before the finding of the indictment. 31 Eliz. c. 11. And as the prosecutor is thus to have restitution, the premises must be described in the indictment with convenient certainty. See 1 Hawk. c. 64, s. 37. Evidence. To maintain this indictment, the prosecutor must prove : 1. That he was in possession of the house in question; and if he intend to have restitution, it must be stated in the indictment, and proved, that he held for a term of years, or as tenant from year to year, for a tenancy at will is not within the statutes as to restitution. 1 Hawk. c. 64, s. 38. 2. That whilst he was so possessed, the defendant forcibly entered into the house. An entry may be said to be forcible, not only in respect of a violence actually done to the person of a man, as by beating him if he refuse to relinquish his possession, but also in respect of any other kind of violence in the manner of the entry, as by breaking open the doors of a house, whether |