The opinion of the Court was drawn up by
Weston C. J.The counsel for the defendants waives the exception taken to the mode of proof at the trial.
Blackstone defines a riot to be, where three or more actually do an unlawful act of violence. 4 Bl. Com. 146. It seems however, that there must be some degree of premeditation, lor the execution of a common purpose. But if persons innocently and law'*348fully assembled, afterwards confederate to do an unlawful act of violence, suddenly proposed and assented to, and thereupon do an act of violence, in pursuance of such purpose, this is a riot. 2 Russell, 250. If they proceed to this length, it is not necessary, that their whole purpose should be consummated. In this case, the defendants having united to ride the complainant on a rail, seized his person, and were proceeding to the accomplishment of their object, when he was rescued from their hands, by the interference of others. The Judge was right in declining to instruct the jury, that having failed to effect their entire purpose, they were not guilty of a riot.
But the presiding Judge erred, in determining that in criminal cases, the jury are not the judges of the law as well as the fact. Both are involved in the issue, they are called upon to try; and the better opinion very clearly is, that the law and the fact are equally submitted to their determination. It is doubtless their duty to decide according to law; and as discreet men, they must be aware, that the best advice they can get upon this point, is from the Court. But if they believe they can be justified in deciding differently, they have a right to take upon themselves that responsibility. The question is very elaborately discussed and exhausted by Kent J. in the People v. Croswell, 3 Johns. Cas. 337. The opinion of the Court was given to the same effect, in the Commonwealth v. Knapp, 10 Pick. 497.
Exceptions sustained.