The defendants were indicted for a riot. The indictment charges that the defendants, on, &c., with force and arms, did unlawfully, riotously, &c., assemble and gather themselves together to disturb the peace of the state, and, being so assembled, did then and there make a great noise, disturbance, riot, and tumult, and then and there unlawfully, riotously, &cl, remained and continued together making such noise, riot, tumult, and disturbance, for the space, &c., and then and there fought through and with each other, &c. Plea, not guilty, and verdict against the defendants. Motion in arrest of judgment, on the ground that it is not alleged in the indictment that the defendants riotously fought through and with each other, &c. The Court arrested the judgment and discharged the defendants.
If the allegation in 'the indictment, that the defendants fought through and with each other, were necessary to complete the offence for which the defendants were indicted, it would have been necessary to aver that it was done riotously. But the indictment would have been good, had that clause been omitted altogether. The common law and statutory definitions of a riot are substantially the same, and at common law, an indictment without the clause referred to would be good. 2 Ch. Cr. Law, 488. — Arch. Or. Pr. 382.
Per Curiam.The judgment is reversed with costs. Cause remanded, with instructions to the Circuit Court to render judgment on the verdict.