#### STATE *vs. HATHCOCK &*AL.

An indictment, whicli charges, that “ A. B. and C. &c. with force and arms, &e. unlawfully, riotously, and routously did assemble together, to disturb the peace of the State, and did, then and there, being so assembled and gathered together, mako a great noise and disturbance in and near the dwelling house of one W. S., proclaiming that the said W. S and his wife were persons of color, offering them for sale at auction and calling them vulgar and opprobious names, all of which was done-in a loud voice, so that the same could be heard at a great distance, to the great damage and terror of the said W. S. and wife and the common nuisance, &c.” does not charge any criminal offence, inasmuch as it does not state that the said W. S. or his wife was in the house at the time.

Every indictment is a compound of law and fact, and must be so drawn, that the Court can, upon its inspection, be able to perceive the alleged crime.

Appeal from the Superior Court of Stanly County, at the Fall Term, 184G, his Honor Judge Dick presiding.

The indictment is in the following words : “ The Jurors for the State, upon their oath present, that Nelin Hathcock, James Hathcock, and Green Hathcock, late of the County of Stanly, together with divers other evil disposed persons, to the number of ten or more, to the Jurors aforesaid unknown, on the twentieth day of August, in the year of our Lord one thousand eight hundred and forty-five, with force and arms, to-wit: with sticks, staves, and other offensive weapons, at and in the County of Stanly aforesaid, unlawfully, riotously, and routously did assemble and gather together to disturb the peace of the State, and did then and there, being so assembled and gathered together, unlawfully, riotously and routously make a great noise and disturbance, in and near the dwelling house of one Willis Shed, proclaiming that they, the said Willis Shed and his wife Election Ann Shed, were persons of colour, offering them for sale at auction, and calling them vulgar and opprobrious names, all which was done in a loud voice, .so that the same could be heard at a great distance, to the great damage and terror of the said Shed and wife, and the common nuisance of the *53good citizens of the State, and against the peace and dignity of the State.

The defendants upon the trial -were convicted, and moved in arrest of judgment, “because no offence was set forth in the indictment, known to the law; or if any offence was set forth, it was not sufficiently set forth.” The motion was overruled, and the defendants appealed.

*Attorney General,*for the State.

No counsel for the defendants.

Nash, J.

Every indictment is a compound of law and fact, and must be so drawn, that the Court can, upon its inspection, be able to perceive the alleged crime. The offence, here intended to be charged against the defendants, is that of a riot; in their assembling in a tumultuous manner, in and about the dwelling house of Shed, and there making a great noise, using abusive and insulting language. , The gist of the offence consists in the defendants using such force and violence, as amounted to a breach of the peace, and the law requires, that, in indictments of this kind, the facts shall be so charged, as to show a breach of the peace, or acts directly tending to it, and not a mere civil trespass. Here, nothing but a civil trespass is charged. The indictment does riot State, that Shed or his wife, or any member of his family, was in the house or present, at the time the defendants were guilty of this improper conduct; and, indeed, for any thing that appears upon the record, the house was vacant. It is true, it is charged that the acts were committed, “ to the great damage and terror of the said Shed and his wife,” but a conclusion, cannot make an averment. Men may be guilty of a riot, in assembling together, to the number of three or more, and in a tumultuous and violent manner, breaking into a house, or demolishing it, or otherwise injuring it, though neither the owner nor any of his family be present; for that is, in *54itself, a breach of the public peace ; but the essence of the charge here is, not for any violence done to the dwelling house, but for riotously disturbing the owner in the quiet and peacable possession of it, and the charge is not made, with sufficient legal certainty, unless it appear, upon the face of the indictment, that the owner or his family were present to be so disturbed. In looking into the precedents, we find this principle to run through them ; thus Mr. Chitty in the 2nd vol. of his Criminal Law, page 505, in giving the form of an indictment against three persons, for a riot before the house of G. H., and shooting off a loaded gun, after setting out the iioutous conduct of the defendants, charges, “and thereby *then*and *there,*not only greatly terrified and alarmed the said G. H. and his family, and disturbed and disquieted them in the *peacable*and *quiet possession, use,*and *occupation of the said dwelling house,*&c.” It is very important, that the line of distinction, which separates a civil, from an indictable trespass, shall be kept as clear and distinct, as the nature of the offences will permit; and in' order to bring a trespass within the criminal jurisdiction of the Court, it must appear, on the face of the indictment, to amount to a violation of the Criminal Law,

It is the opinion of this Court, that the judgment below, is erroneous, and that a certificate to this effect be sent to the Court below.

Per Curiam. Ordered accordingly.