Appellant has at last got the record in this case complete, which shows that his bills of exception and statement of facts were filed in time. They have been duly read and considered.
In his motion for rehearing he again contends that the information herein is fatally defective. In the recent case of Ligon v. State, 198 S.W. Rep., 787, in what may be regarded as a companion case, this court held the complaint and information therein were valid. The pleadings in that case were substantially the same as in this. It would *Page 509 be sufficient, therefore, to refer to that case as decisive against his contention. However, there is one objection he makes which we will discuss; that is, he claims that the information "nowhere alleges that the street car was being operated or run, or that it was intended to be operated or run." He contends this allegation was necessary, and cites and relies upon McGehee v. State, 23 Texas Crim. App., 330; Follis v. State, 37 Tex. Crim. 535; Bradford v. State, 40 Tex.Crim. Rep., and perhaps other claimed somewhat like cases.
The statute defining the offense herein is: "An unlawful assembly is the meeting of three or more persons with intent to aid each other by violence . . . illegally to deprive any person of any right, or to disturb him in the enjoyment thereof" (art. 435, P.C.); and art. 445, P.C., which is: "If the purpose of the unlawful assembly be to prevent any person from pursuing any labor, occupation or employment, or to intimidate any person from following his daily avocation, or to interfere in any manner with the labor or employment of another, the punishment shall be by fine not exceeding five hundred dollars." The information under which the conviction was had was quoted in the original opinion.
A comparison of the pleading herein with that of the McGehee case will show that it is in accordance therewith. The pleading in the McGehee case was expressly held sufficient.
In the Follis case the indictment alleged simply that the appellants therein unlawfully met "together with intent to commit an offense against the laws of this State, towit: with the intent to aid each other by violence and by force and intimidation to deprive Elgin Sutton of his right and disturb him in the enjoyment thereof, towit: the right to have a social gathering and dance at his house." That indictment was held defective because it did not directly allege that Sutton had a house and was giving or about to give or intended giving a social gathering and dance at his house.
In the Bradford case the information alleged that appellant therein, with other persons named, "with the intent to aid each other, by violence and intimidation, to illegally deprive L.H. Ernst from running and operating a certain farm in the county and State aforesaid, said farm being then and there the property of the said L.H. Ernst, by illegally depriving him, the said L.H. Ernst, of the right to employ and retain in his employ Mexicans as laborers upon his said farm, and to disturb him, the said L.H. Ernst, in the enjoyment of said right to employ and retain in his employ Mexicans as laborers upon his said farm, by violence and intimidation as aforesaid, it being then and there the legal right of the said L.H. Ernst to employ and retain in his employ Mexicans as laborers." The information therein was held defective because there was no direct allegation that said Ernst then and there had in his employ, or was about to employ, certain Mexicans as laborers upon his farm. The court held: "There should have been *Page 510 a direct averment that the said Ernst was engaged in running and operating a certain farm, and also that he then and there had in his employ certain Mexicans, or that he was about to employ certain Mexicans for the purpose of running and operating his said farm."
It was not necessary to the validity of the pleadings herein that it should allege that the street car was being operated or run, or intended to be, as contended by appellant.
The pleading herein clearly met what was held defective in the Bradford and Follis cases. Succinctly stated, it alleged:
That said Kuehme and Brown were each, and both then and there engaged in a lawful employment, towit: pursuing the labor, occupation and employment of motorman and conductor, respectively, being employed as such on a street car owned by a certain named company, a corporation. That appellant and three others named, and divers other unknown persons, did unlawfully assemble and meet together, with the intent and purpose to aid each other by the means, and with the things, enumerated, to illegally prevent and deprive said Kuehme and Brown, and each of them, of his and their right and the right of each of them, to labor, and to disturb them and each of them in the enjoyment of said right. And that it was the purpose of said unlawful assembly, and the intent of appellant and said others named and those unknown, to prevent said Kuehme and Brown, and each of them, from pursuing their and his respective labors, occupation and employment, and to intimidate him and them from following his and their said avocations, and to interfere by the means aforesaid, with his labor and employment as motorman and conductor, the same being the usual and ordinary occupation and employment of said Kuehme and Brown, respectively.
The pleading was complete and full under the statute and decisions. Possibly, under said Bradford and Follis cases if the information had charged that the unlawful assembly and intent, etc., was to prevent, etc., said street car company from operating its cars such an allegation as appellant claims, should have been made herein, might then have been proper or necessary.
Riot and unlawful assembly are both misdemeanors — neither is a felony. The statute (art. 1013, sub. 3, P.C.) that the use of any dangerous weapon with the intent to alarm comes within the meaning of an assault, prescribes only a misdemeanor. And while article 1024a, Vernon's Criminal Statutes, prescribes that the wilful commission of an assault or battery with a pistol, while being unlawfully carried, may be a felony, neither of these statutes have any application whatever to this case. The pleading herein in no way, in either count, alleged a felony.
The witnesses identified only three, appellant, Smith and Cole, of the many persons engaged in the unlawful assembly. They could not *Page 511 identify any of the others. Smith had previously been tried and acquitted in another case — not in this case.
Appellant thereupon contends that Smith could not be counted as one of the unlawful assembly, and without him, as the evidence identified only two others, appellant and Cole, the conviction can not stand. He cites 39 Cyc., 834, and some cases from other jurisdictions, which, he claims, support and establish his contention. Cyc. says: "In order to sustain a conviction for unlawful assembly the number of persons required to constitute the offense must be indicted. So if, on the trial, less than the required number be found guilty, and the others charged be acquitted, the conviction can not be sustained." Only one Indiana case is cited to support the text. Appellant, however, cites some decisions of other jurisdictions which, he claims, support his contention.
The doctrine laid down by Cyc. quoted is not the law in our State, as has many times been held in principle by this court. There are also decisions of other States holding the reverse of appellant's contention. Alonzo v. State, 15 Texas Crim. App., 378; Mercer v. State, 17 Texas Crim. App., 452; Ledbetter v. State, 21 Texas Crim. App., 344; Bell v. State, 33 Tex. Crim. 163; Solomon v. State, 39 Tex.Crim. Rep.; Minter v. State, 70 Tex.Crim. Rep.; State v. Eggleston, 45 Ore., 346; Vought v. State, 135 Wis. 16; People v. Barnes, 2 Idaho 161; State v. Cutshall, 109 N.C. 764; State v. Carroll,30 S.C. 85.
The fact that Smith when previously tried in a case against him alone, in some way, not disclosed, secured his acquittal, would not prevent the State from showing in a trial of the case against appellant alone, that Smith was one of the three or more who participated in the unlawful assembly when appellant did, and thereby prevent appellant's conviction. Of course, Smith having been acquitted, he could not again be tried or convicted, whatever may have been the reason for his acquittal, or however secured. It was appellant, and not Smith, who was tried in this case.
In said Alonzo, Ledbetter and Solomon cases the man and woman were both jointly prosecuted for adultery, or fornication, as the case was. The woman in each case was acquitted, or after jeopardy attached the case was dismissed as to her, and in each case the man then convicted. The man contended that as the woman had been acquitted this inured to his benefit, and he could not, therefore, be convicted. This court in each instance held against him.
In the Mercer case he was convicted of incest. He contended in appeal that he could not be convicted unless the woman was also guilty. This court held against him.
In the Bell case, she, a white woman, was convicted of misceganation, marrying a negro man. She contended as the man had been tried and acquitted, she could not be convicted. This court held against her.
In the Vaught case the Wisconsin court held that when three town *Page 512 officials were jointly indicted for theft of town orders the acquittal of two did not prevent the conviction of the other.
The motion is overruled.
Overruled.