STATE
v.
Desmo WYNNE, Bryant Moran, E. C. Brown, and Mary Hanson.
No. 2.
Supreme Court of North Carolina.
October 9, 1957.*924 George B. Patton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.
Robert D. Glass, New Bern, for defendants, appellants.
HIGGINS, Justice.
The evidence was sufficient to permit the finding that a riot took place, and that the defendants were involved. State v. Hoffman, 199 N.C. 328, 154 S.E. 314; State v. Davenport, 156 N.C. 596, 72 S.E. 7; State v. Hughes, 72 N.C. 25; State v. Stalcup, 23 N.C. 30; 77 C.J.S. Riot § 5, p. 426; 46 Am.Jur. 130, sec. 10.
The appellant Desmo Wynne's exception No. 5 challenges the following part of the court's charge: "If you find from the evidence in this case and beyond a reasonable doubt that Desmo Wynne assembled together with two or more other persons of his own authority and they all had an intent mutually to assist each other in taking Mary Hanson from the officers or preventing the officers from completing her arrest and placing her in jail, and after so assembling with the intent aforesaid they put their design into execution in a terrific and violent manner by throwing bottles or by other acts of overt violence, then you should return a verdict of guilty as to the defendant Desmo Wynne."
Moran took exception No. 6 to a similar charge as to him, and Brown took exception No. 7 to a like charge as to him. The three exceptions are brought forward and discussed under assignments of error Nos. 2, 3, 4, and 7. The assignments leave something to be desired in pinpointing the error. However, enough appears to present appellants' challenge to the court's instructions to the jury.
The bill of indictment charged that the three appellants and Mary Hanson committed the offense. Therefore, in order to convict any defendant, it was necessary for the State to prove that he participated with at least two of the three others charged. Nevertheless, the court instructed the jury it might convict any defendant if it be found he participated with two or more other persons. To have justified this instruction the indictment should have charged the named defendants and others committed the acts constituting the offense. When the law requires the participation of more than one person in order to make their acts criminal, the *925 required number must be found among those described in the bill as participants. However, participants may be designated by name and the number enlarged by adding the words, "and others." State v. Raper, 204 N.C. 503, 168 S.E. 831; State v. Smith, 237 N.C. 1, 74 S.E.2d 291; State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25. The court's instructions permitted the jury to go outside the indictment to find the required number.
It is impossible to tell whether the jury found each appellant engaged in a riotous assembly with as many as two of the other three named or whether he so engaged with any two or more of the assembled multitude. The charge permitted the jury to do either. For this error, the defendants are entitled to a
New trial.