Criminal law. Charge of court. New trial. Before Judge ERWIN. Gwinnett Superior Court. September Term, 1881. Three of the Whitley family were indicted for riot. On the trial, the evidence for the state showed, in brief, the following facts: Hodgins taught a country school. Two of his scholars became involved in a difficulty, a .small girl named Summey reporting a daughter of one of the Whitley’s for calling her opprobrious names.
¶1The defendants were indicted for a riot, found guilty, and a new trial having been refused by the court below, they brought their case here on sundry grounds, of error-set out in the bill of exceptions :
¶2i. The common law definition of a riot was- asked in writing'to be given in charge, and refused, but the court charged the crime as defined in our own penal Code. Surely this, cannot b.e erroneous- If the Code and com*659mon law are the same in substance^ then the defendants were not hurt, for they got the law asked for submitted to the jury; if there be a difference between the common-law offense and the offense defined in our Code, of course our statute must prevail, and the refusal to charge the first and the charge of the second must be right.
¶32. The presiding .judge is not required to give to the jury a hypothetical illustration of the law in the language of a written request. He may illustrate to suit himself. It is enough that he gives the law as requested, leaving out all suppositive illustrations of the legal principle, if he see fit so to do.
¶43. The offense of riot was made out by the proof under the definition of the crime in our Code. It does not matter that there were two sets of rioters, and that this set now convicted was worsted in the melee that ensued. If another crowd, banded in opposition to these, was more riotous than the defendants, the presumption is that the state’s counsel will see to it that they are also brought to trial, and that the court, on conviction, will apportion punishment to the aggravated conduct of those most to blame.
