Pee CtrRrAsr,
Mason, Chief Justice.The plaintiffs in error were indicted in the court below for a riot; On the trial their counsel offered in evidence the transcript of a trial and judgment before a justice of the peace, wherein Scott was tried and fined for an assault and battery, and. also offered to prove that such trial and fine was for the same offence for which he stands indicted for a riot. This testimony was rejected by the court. This is the first error assigned.
We think the evidence was properly rejected. No man shall be twice punished for the same offence, but here the second punishment sought to be inflicted is for a different offence. The greater includes the less, and the punishment for a riot would be a defence against a prosecution for an assault and battery, but not vice versa. If the rule sought to be established in this case be correct, then downright murder might often escape with the punishment for a mere assault and battery.
Another error assigned, is that the court charged the jury that actual possession of the public lands only, would warrant the defendants in undertaking to drive Willis from the lands alleged to have been in dispute, and as the fee simple to the lands was in the government constructive, possession, or possession by virtue of the act of the territorial legislature, would not justify them. So far as this instruction has any applicability to this case, i: must be understood as deciding that under the circumstances, the defendants were not justified in using the violence they did in removing those whom they deemed intruders. This is doubtless the law, and we go much further in this respect than the court below has done. For even they would not have been justified in using this violence if they had been absolute owners of the soil.
But the exception chiefly relied on by the plaintiff in qrror, is to the charge of the court, “ that any act, word, wink, or nod, by which the *145defendants snowed that they encouraged or approbated one of tbeir number in making an actual assault, or assault and battery, upon said Willis, would make the actual violence of the one defendant committing it, the act of all who thus encouraged or approbated.” If by this instruction we are to understand the court to decide, that where one person commits an assault and battery, and others stand by and encourage, without yielding physical aid, the offence becomes a riot under our statute, we think the court was in error. Our law defines a riot to consist in two or more persons actually doing an unlawful act with force and violence against the person or property of another, &c. The rule of construction in relation to penal statutes, which guards against inferential crimes, seems to require that two or more persons should be actually engaged in some physical aci of violence, to constitute a riot under our statute.
But does the instruction of the court admit of such a construction The jury were charged that those who stood by and encouraged the commission of an offence, adopted that offence and made it their own, but it does not appear that they were charged that such adoption transformed an assault and battery into a riot. If Scott, therefore, was engaged with others in a riot, (for no evidence is set iorth sufficient to enable us to judge whether he was or not,) those who encouraged ,and abetted became rioters, according the decision in the District Court. If he was merely committing an assault and battery alone, they became guilty of the same crime as accomplices. This decision is correct.
It is true, we may with some plausibility infer from the instruction last mentioned, that the court intended to direct the jury to find the defendants guilty of a riot, if only one of their number committed-the actual violence and the others stood by and encouraged ; but such is not the necessary, nor even the natural inference. At all events we do not intend to make evidence, nor infer facts to strengthen the case of a plaintiff in error. He must make out his own case, and the language of his hill of exceptions will be taken most strongly against himself. The judgment below will therefore te affiAied.