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official character of the defendant is often by statute relevant as a valid defense, and in such a case evidence is admissible,5 to show that he is a sheriff, marshal, deputy marshal," or other officer charged with the duty of preserving the peace, or serving judicial process,6° or a mail carrier." The officer must show that he was actually engaged in executing process,62 or searching for cr arresting a criminal, and of these facts the existence of process is evidence. The process itself or a certified copy is the best evidence of its existence, and must be produced.**

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A written appointment offered to prove official character need not be technically correct if it was sufficient to cause the defendant to believe that he was exempt.65 Persons traveling are sometimes privileged to carry concealed weapons. Whether a person is a traveler is usually for the jury to determine upon all the facts,** as, for example, quitting the neighborhood of one's acquaintances and friends, going among strangers, the distance covered and the purpose and objects contemplated in going, loitering or returning. These facts are, therefore, admissible in evidence." The

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'Lee, In re, 46 Fed. 59, 62, 63.

State v. Williams, 72 Miss. 992, 18 So. 486; Irvine v. State, 18 Tex. App. 51, 53; Snell v. State, 4 Tex. App. 171, 172; Carmichael v. State, II Tex. App. 27, 28; McIntyre v. State, 170 Ind. 163, 83 N. E. 1005.

61 Lott v. State, 122 Ind. 393, 395, 24 N. E. 156. A person specially deputized by the court to make an arrest where a constable is not procurable may carry a pistol. Jenkins v. State, 47 Tex. Cr. 224, 82 S. W. 1036.

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'Lawson v. State (Tex., 1895), 31 S. W. 645; Blackwell v. State, 34 Tex. Cr. 476, 31 S. W. 380; Price v. State, 34 Tex. Cr. 102, 29 S. W. 473; Dillingham v. State (Tex., 1895), 32 S. W. 771; Hathcote v. State, 55 Ark. 181, 184, 17 S. W. 721; Impson v. State (Tex., 1892), 19 S. W. 677; Wilson v. State, 68 Ala. 41; Lott v. State, 122 Ind. 393, 395, 24 N. E. 156; Stiewell v. State (Ark., 1890), 12 S. W. 1014.

07 Davis v. State, 45 Ark. 359, 361; Wilson v. State, 68 Ala. 41; Carr v. State, 34 Ark. 448, 449, 36 Am. 15; Burst v. State, 89 Ind. 133, 135

presumption is that the accused is not a traveler and the burden of proof is on him to show this excuse."

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$487. Forcible entry and detainer.-This is often by statute made a crime and consists of forcibly taking or keeping possession of lands and tenements by menaces, force and arms, and without authority of law.""

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Evidence to show title in the defendant or in some person for whom he is acting is irrelevant. The object of the statute is not to determine to whom the premises belong of right, but to discourage a resort to violence and prevent a breach of the peace.

But it may be shown that the accused took possession by virtue of a judicial writ or order, regular upon its face, issuing from a court of competent jurisdiction. It cannot be proved collaterally that the process is void."1

Evidence tending to show the employment of force by the accused is always relevant. And to sustain a conviction such high-handed proceedings, or such a show of force must be proved as overawed and intimidated the injured party, and either deterred him from defending his possession, or coerced him into surrendering it.72 If the evidence shows the taking possession was peaceable and with the consent of all parties the accused must be acquitted. It is not necessary, however, to show that the accused actually assaulted the owner or the person in possession.74

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"Wiley v. State, 52 Ind. 516, 519; Brownlee v. State, 35 Tex. Cr. 213, 32 S. W. 1043; Easlick v. United States, 7 Ind. Ter. 707, 104 S. W. 941; Colson v. State, 52 Tex. Cr. 138, 105 S. W. 507; State v. Miles, 124 Mo. App. 283, 101 S. W. 671. As to when the accused ceased to be a traveller by reaching his destination, see Holland v. State, 73 Ark. 425, 84 S. W. 468; Rosaman v. Okolona, 85 Miss. 583, 37 So. 641, 107 Am. St. 257; Navarro v. State, 50 Tex. Cr. 326, 96 S. W. 932.

"The entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained

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§ 488. Affray.-This offense has been defined as the fighting of two or more persons in some public place to the terror of his majesty's subjects." If the fighting be private it is not an affray but an assault." The state must prove as elements of the crime: First, the fighting. Second, the fact that it was in a public place. Third, that it was in terror of the king's subjects, and, fourth, that two or more persons were engaged in it." Evidence of any fact which shows or tends to show an assault and battery by one person on another is admissible to prove the fighting. The declarations of any one implicated, uttered during the affray or which are otherwise a part of the res gesta, are admissible against any of the others. The accused may always prove in justification that he was attacked and that he fought to defend himself. *° But he cannot put in evidence his belief that he was in danger to sustain this defense. The burden of proof is on him to show that he fought in self-defense.81 It must also be proved that the fighting was in public.

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the time the effort to re-enter is made, there be an exhibition, by words, acts, or circumstances, calculated to intimidate the former possessor, and to impress on him an intention on the part of the person unlawfully detaining the premises to hold possession of them by force and violence, the offense is complete."

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7 Ohio v. Foy, Tappan (Ohio) 71; Simpson v. State, 5 Yerg. (Tenn.)

State v. Harrell, 107 N. Car. 944, 12 S. E. 439; McClellan v. State, 53 Ala. 640; Childs v. State, 15 Ark. 204; Commonwealth v. Simmons, 6 J. J. Marsh (Ky.) 614; State v. Warren, 57 Mo. App. 502; State v. Huntly, 3 Ired. (N. Car.) 418, 40 Am. Dec. 416. Coyle v. State (Tex. Cr.), 72 S. W. 847; People v. Moore, 3 Wheeler Cr. (N. Y.) 82.

$1 State v. Barringer, 114 N. Car. 840, 19 S. E. 275.

80 4 Bl. Com. 145; Thompson v. State, 70 Ala. 26; State v. Brewer, 33 Ark. 176; State v. Davis, 65 N. Car. 298; State v. Perry, 5 Jones (N. Car.) 9, 69 Am. Dec. 768; State v. Priddy, 4 Humph. (Tenn.) 429; Simpson v. State, 5 Yerg. (Tenn.) 356; Pollock v. State, 32 Tex. Cr. 29, 22 S. W. 19; State v. Freeman, 127 N. Car. 544, 37 S. E. 206.

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82 Skains v. State, 21 Ala. 218; Carwile v. State, 35 Ala. 392; Taylor v. State, 22 Ala. 15; State v. Heflin, 8 Humph. (Tenn.) 84; State v. Warren, 57 Mo. App. 502; State v. Woody, 2 Jones (N. Car.) 335; State v. Sumner, 5 Strobt. (S. Car.) 53; Shelton v. State, 30 Tex. 431; Reg. v. Hunt. 1 Cox. C. C. 177; Gamble v. State, 113 Ga. 701, 39 S. E. 301; State v. Fritz, 133 N. Car. 725, 45 S. E. 957; Piper v. State (Tex. Cr.), 51 S. W. 1118

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$489. Riot.-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 do other unlawful act with force, or even a lawful act, as removing a nuisance, in a violent and tumultuous manner, it is a riot. There must not only be a common intent to do an unlawful act or some lawful act in a violent manner but also concert of action. An unlawful assembly must be proved. Then whatever act will constitute a trespass may substantiate a charge of riot. The defendant's connection with the unlawful assembly must be shown by evidence satisfactory to the jury. His purpose and intent may be inferred from the circumstances. As soon as it is proved, he will become responsible for all the acts and declarations of the others made during the progress of the riot. If during the riot some one is killed, it is not necessary to prove that he struck the fatal blow. It is suffi

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4 Bl. Com. 146; Whitley v. State, 66 Ga. 656. As by cursing and threatening a man in his house and by repeatedly firing a gun. Lewis v. State, 2 Ga. App. 659, 58 S. E. 1070; Croy v. State, 4 Ga. App. 457, 61 S. E. 847. If three persons have a common purpose to do an unlawful violent act it is not material that the act of each individual was separate. State v. Mizis, 48 Ore. 165, 85 Pac. 611, rehearing denied, 86 Pac. 361. In Reg. v. Soley, II Modern 115, the court, on p. 116, said: "The books are obscure in the definition of riots. I take it, it is not necessary to say they assembled for that purpose, but there must be an unlawful assembly, * *such an act as will make a trespass will make a riot. If a number of men assemble with arms, in terrorem populi, though no act is done, it is a riot. If three come out of an alehouse and go armed, it is a riot. Though a man may ride with arms, yet he cannot take two with him to defend himself, even though his life is threatened, for he is in the protection of the law, which is sufficient for his defense."

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Stanfield v. State, 1 Ga. App. 532,

57 S. E. 953; Jemley v. State, 121 Ga. 346, 49 S. E. 292.

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"A riot is a common-law offense, and is said to be a tumultuous disturbance of the peace, by three or more persons, assembled together, of their own authority, with an intent mutually to assist one another, against any 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." State v. Russell, 45 N. H. 83, 84; Commonwealth v. Runnels, 10 Mass. 518, 6 Am. Dec. 148; People v. Judson, 11 Daly (N. Y.) 1; State v. Cole, 2 McCord (S. Car.) 117; State v. Connolly, 3 Rich. (S. Car.) 337; State v. Brooks, 4 Hill (S. Car.) 361; People v. Gregory, 120 Cal. 16, 52 Pac. 41; Hunter v. State, 127 Ga. 43, 55 S. E. 1044; Carter v. State (Ga. App., 1909), 65 S. E. 1072.

80 State v. Seeley, 51 Oreg. 131, 94 Pac. 37.

$7 Shuler v. State, 126 Ga. 630, 55 S. E. 496.

cient to prove that some one implicated in the unlawful assembly struck the blow, though it may not appear who it was.88 All the circumstances attending the riotous assemblage including the facts showing the violence or force employed, the threats, oaths and outcries of those participating, and their other declarations being a part of the res gesta and showing intention are relevant in evidence. It may also be shown what was done by the prosecuting witness or by members of his family or other persons not incriminated with the accused. It may be shown that the prosecuting witness or his wife fainted and was terrified by the action of the rioters, and missiles or arms used by the rioters and identified with the scene of the riot may also be introduced in evidence. $9

§ 490. Conspiracy.-When two or more persons unite to execute a purpose to injure or destroy the life, or the property, or personal rights of another, a conspiracy exists. The mere combination of persons to do a criminal act is a crime, even though the object of the combination is not consummated. Here the gist of the crime is the conspiracy, and, both at common law and under statute, any participant may be indicted for his share in the illicit transaction. But usually the proof of a conspiracy is merely incidental to proving some other crime in which several have taken part. Thus, where a man has been killed as the result of

88 State v. Jenkins, 14 Rich. (S. Car.) 215, 94 Am. Dec. 132n. See generally, Hawk. P. C. Ch. 65; 5 Burns Justice 142; 2 Chitty Cr. Law 488; 3 Greenl. Ev., § 216; 2 Wharton Am. Cr. L. (10th ed.), § 1542; Roscoe Cr. Ev., 902; and State v. Renton, 15 N. H. 169, 172. "The law does not distinguish between the relative degree of violence used by individuals, but every one who participates is responsible for all that has taken place. * * * It is not necessary that a party should commit personal violence; being armed with offensive weapons, or making use of threatening speeches or turbulent gestures; indeed, any act of assistance or encouragement is sufficient to make him a principal."

"Where many individuals are acting separately, or in small parties distinct from each other, at different times and at different places, but manifestly for the same general purpose, as to break into a theater, or to injure it by the throwing of stones, and missiles, or to resist or attack those who are there in authority to preserve the peace, it is not a series of affrays but a general riot." People v. Judson, 11 Daly (N. Y.) 1, 17, 83, 84.

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