25 F. Cas. 1062, *; 1836 U.S. App. LEXIS 291,
4 Cranch C.C. 675
UNITED STATES v. FENWICK et al.
Case No. 15,086
Circuit Court, District of Columbia
25 F. Cas. 1062; 1836 U.S. App. LEXIS 291; 4 Cranch C.C.
April 7, 1836
[**1] [*1063] THE COURT
(THRUSTON, Circuit Judge, absent) said that they had in some previous case,
decided that it was sufficient that the defendants assembled to disturb the
peace, and being so assembled, did so and so; and referred to the forms of
indictment in the Crown Cir. Companion, 384-390.
Mr. Hoban, for some of the defendants, moved the court to instruct the jury, that
the second count does not state an indictable offence. It charges the defendants
with inciting others to insurrection, tumult, and riot. There is no such offence
as "insurrection" in this country. "Tumult," is too vague, and so is "riot."
Starkie, Cr. Pleading, 78; Rex v. Holland, 5 Term R. 625. It ought also to have
averred that insurrection, tumult, and riot were thereby excited. Reg. v.
Daniell, 6 Mod. 99, 101, 182; Reg. v. Collingwood, Id. 288.
Mr. Key, contra, cited 2 Chit. 507, where there is a similar form of
THE COURT (nem. con.) refused to give the instruction.
Mr. Brent, for defendants, then offered
to prove that Walker, a colored man, and partner of Snow, had, this morning,
said that the sign was cut down at his (Walker's) request, to prevent further
Mr. Key, [**2] contra, objected that Walker's
declarations, now made, are not competent evidence to prove his request.
THE COURT, however (CRANCH, Chief Judge, contra),
overruled the objection, and permitted the evidence to be given.
The United States having closed their evidence, and there
being nothing proved against Mr. Moore, one of the defendants, he was examined
as a witness for the other defendants.
Mr. Hoban, for
Beedle and Wetherall, two of the defendants, prayed the court to instruct the
jury: (1) That if they do not believe, from the evidence, that they were present
at the destruction of the property of Snow & Walker, on 6th street, or if
present, not aiding and assisting thereat, the jury should acquit them. (2) That
if the jurors believe, from the evidence, that the defendant Beedle was in
company with a crowd, armed with clubs, and no act of violence or outrage
proved, he should not be found guilty of a riot. (3) That to find the defendant
guilty under the second count in the indictment, they must believe, from the
evidence, that he actually persuaded, and tried to induce three or more persons
tumultuously to assemble to break the peace, and do some act of violence.
Mr. Hoban [**3]
contended: (1) That the act of violence, intended, must have been perpetrated;
and that those only who were present, and did the act, can be found guilty. (2)
That if no act of violence was perpetrated, it was no riot. (3) That, in order
to convict the defendant, under the second count, there must have been an act of
violence done in consequence of the incitement.
Mr. Key, contra, cited U.S. v. Gooding, 12 Wheat. [25 U.S.] 469, and contended that
if the defendants assembled to do one unlawful act, and they do another unlawful
act, they are guilty; and thereupon prayed the court to instruct the jury, —
That if they believe, from the evidence, that the defendants, or any of them,
assembled together with others, to the number of nearly one hundred, for the
purpose of seizing one Beverly Snow, on account of insulting expressions which
they had heard he had used, then such assembly of such persons, agreeing
together to accomplish such object, and their attempting to execute such purpose
by tumultuously surrounding his house, and entering it with intent to seize him,
without legal authority therefor, if believed by the jury from the evidence,
constituted a riot; and the jury may infer [**4] the intent from the acts done; and ought
so to infer, in the absence of all contradictory evidence.
THE COURT (nem. con.) refused to give the instruction prayed by Mr.
Hoban, and gave that prayed by Mr. Key.
court had decided the point of law which had been argued by Mr. Key and Mr.
Hoban, Mr. Brent, for the defendants, other than those for whom Mr. Hoban
appeared, offered to argue the same point of law to the jury, in opposition to
the instruction which the court had given.
THE COURT said, that after a point of law had been argued by the counsel of the parties,
and the court had, at the request of either party, instructed the jury upon the
point so argued, they could not permit the question of law to be reargued to the
jury, in opposition to the instruction given by the court.
Mr. Brent contended, that, as the jury had a right, in criminal cases,
to decide the law as well as the fact, he, as counsel for some of the
defendants, had a right to argue the law to the jury; and cited 1 Chase, Tr. pp.
5, 34; 2 Chase, Tr. pp. 59, 60; Croswell's Case, 3 Johns. Cas. 352, 376;
Frskine, Speeches, 152; Van Horne v. Dorrance, 2 Dall. [2 U.S.] [*1064] 307; State of
Georgia [**5] v. Brailsford, 3 Dall. [3 U.S.] 4.
Mr. Key, contra, contended that if
there can be appeal from the court to the jury upon a question of law, it can be
only in capital cases. Blunt v. Com., 4 Leigh, 689; Davenport's Case, 1 Leigh,
Mr. Hoban observed that he appeared for two of
the defendants only, Beedle and Wetherall; and that his argument in their
defence ought not to prejudice that of the other defendants.
Mr. Bradley, who appeared, with Mr. Brent, as counsel for the other
defendants, contended that the rule suggested by the court, applied only to
cases where the defendants have asked an instruction to the jury, or have joined
in the argument to the court, upon an instruction asked by the attorney of the
United States, and thereby waived their right to argue the law to the jury; and
stated that they had objected to the court's giving an instruction to the jury
before they had argued the law to them.
THE COURT said
that they had not heard any such objection, and had considered the counsel for
all the defendants as joining in the argument upon the motions of Mr. Hoban and
Mr. Key to the court for instructions to the jury. But as they had made such
objection, although [**6]
not so understood by the court, they were allowed to argue the whole law of the
case to the jury; MORSELL, Circuit Judge, observing that the court never denied
the power of the jury to decide the law as well as the fact, in criminal cases
by finding a general verdict; but when either party has asked an instruction,
and the other party has proceeded to argue the question before the court, and
the court has given an instruction upon that question, the counsel has no right
to argue the same question of law before the jury. If the party does not join in
the argument to the court, but insists upon arguing it to the jury, the court
will require him to proceed with his argument, and will, after the argument,
give, or refuse, such instruction, or give such other instruction as the court
shall think proper.
Mr. Key replied to the argument to
the jury, and concluded by requesting the court to instruct them upon the whole
law of the case; whereupon
THE COURT instructed the
jury as follows: As the counsel for some of the defendants have argued before
you upon the law as well as upon the facts of the case, and the attorney of the
United States has requested the court to state to you the law [**7] upon the whole case,
we will endeavor to do so. In criminal cases, the jury has a right to give a
general verdict, and, in doing so, must, of necessity, decide upon the law as
well as upon the facts of the case. As we have not taken notes of the evidence,
not having had an expectation of being called upon to give an opinion upon the
whole case, we leave the question of fact entirely to your consideration. But,
as to the law, we say, that, if from the evidence you should be satisfied that
the defendants, or any of them, assembled, to the number of three or more, with
intent forcibly and violently to disturb the public peace in a tumultuous
manner, and with intent mutually to assist one another against any who should
oppose them in the execution of the purpose aforesaid, and they did thus
assemble with force and violence, and in a tumultuous manner to disturb the
peace, either by show of armor, threatening speeches, or turbulent gestures, to
the terror of the people, then such assemblage, with such intent as aforesaid,
so executed, constituted a riot, whether they broke into Snow's house, or not.
That the marshal has a right to take the posse, and to call on all citizens to
aid him [**8] in arresting the
rioters, and that the citizens had a right to arm themselves. That the
excitement, whatever might be the cause, was no justification of the intended
force and violence. That the intent to seize Snow, by force, for uttering
slanderous or offensive words, and to carry him, by force, anywhere, even before
a justice of the peace, without legal warrant, if such case should be proved to
the satisfaction of the jury, was an unlawful intent. That the intent may be
presumed from the act; for every man is presumed to have intended to do what he
has done, until the contrary is proved. That all concerned in the unlawful
assembly are equally guilty of the subsequent acts done by any of them in
furtherance of the common objects of the assembly; and all who joined them after
the original meeting, and who were present at any subsequent act, and either
active in doing, countenancing, or supporting, or ready, if necessary, to
support, the unlawful act, thereby became parties to the riot, and are equally
guilty of all their subsequent acts.
The jury found
six of the defendants guilty, and recommended them to the mercy of the court.
When they were brought up for judgment, CRANCH, [**9] Chief Judge, said:
"Before passing sentence upon the defendants who have been convicted in the
cases of riot, the court has deemed it proper to make a few observations upon
the nature and tendency of the offence. Civil society cannot exist without laws
to protect the weak against the strong. These laws are of no avail unless
supported by the strength of the whole society, or, at least, of a majority.
They must be executed according to prescribed forms, by known, responsible,
public functionaries, selected for the purpose. Our judicial tribunals, and
their forms of proceeding, have received the sanction of many ages, and by them
the laws have been administered, to the general satisfaction of the people under
all the various forms of government through which we and our ancestors have
passed. In a regular government no laws can be made, or executed, but according
to the forms prescribed by the constitution and fundamental laws of the state
[*1065] or society. No voluntary association of individuals, unknown
to the constitution, have a right to make or execute the laws, or to judge,
condemn, or punish those whom they may deem to be offenders, and to punish whom
they may suppose [**10] the law to be inadequate to, however pure
or holy may be their motive; and if, in their fanaticism or their frenzy, they
should take the life of their victim, they would be guilty of murder. Such,
also, would be the judgment of the law if any unauthorized individual, or
combination of individuals, should snatch from the officers of justice even a
condemned murderer, and proceed themselves to execute the sentence. But the
example of such an usurpation of judicial or executive functions, if unpunished,
would be far more pernicious to society than the mere act of murder which would
have been committed. The reign of terror would have commenced and no one could
foresee the extent of its ravages. It is easier to create an excitement than to
allay it; for every degree of excitement tends to pervert the judgment, to
obscure the light of reason, and to sear the conscience. When a mob is once
raised, no one can tell where it will end, and all who assisted in raising it
are guilty of all the consequences. The more respectable the persons engaged in
it, and the more desirable the end to be obtained, the more dangerous is the
example; for it good men may use unlawful means to accomplish a [**11] good end, how can
wicked men be restrained from using like means for an unlawful end? All good
ends must be pursued by lawful means. The supremacy of the law is the only
security for life, liberty, and property."
The defendants, who were convicted, were then sentenced to six month's imprisonment,
and to pay a fine of fifty dollars and costs.
CITING DECISIONS ( 3 citing decisions )
U.S. CIRCUIT COURT OF APPEALS
United States v. Taylor, 3 McCrary 500, 11 F. 470, 1882 U.S. App.
LEXIS 2421 (C.C.D. Kan. 1882)
11 F. 470 p.473
Stettinius v. United States, 5 Cranch C.C. 573, 1839 U.S. App. LEXIS 364,
22 F. Cas. 1322, F. Cas. No. 13387, 5 D.C. 573 (1839)
VERMONT SUPREME COURT
22 F. Cas. 1322 p.1333
5 D.C. 573 p.597
State v. Burpee, 65 Vt. 1, 25 A. 964, 1892 Vt. LEXIS 3, 36 Am. St.
Rep. 775, 19 L.R.A. 145 (1892)
65 Vt. 1 p.28
25 A. 964 p.972