Opinion
(January Term, 1867.)
1. Although no bill of exceptions be filed, and it does not appear that there was any motion in arrest of judgment, the Supreme Court will examine the record to see whether there be error.
2. An indictment, charging that the defendant and another "did commit an affray, by fighting together by mutual and common consent, in public view," includes a charge of a mutual assault and battery, and the defendant may be convicted under it, though the grand jury endorsed Not a true bill as to the other.
( S. v. Allen, 4 Hawks, 358, cited and approved; S. v. Woody, 2 Jon., 335, cited, distinguished and approved.)
AFFRAY, tried before Mitchell, J., at Fall Term, 1866, of the Superior Court of WATAUGA.
Attorney-General for the State.
No counsel for defendant.
The facts are sufficiently set forth in the opinion.
This case is brought before us by the appeal of the defendant, who was convicted upon an indictment which charged that he and one Samuel Tribet "did commit an affray, by fighting together by mutual and common consent, in public view, contrary to the peace and dignity of the State." No bill of exceptions has been filed, and the record does not show that there was any motion to arrest the judgment. It is our duty, nevertheless, to examine the record to see whether there is any error in it. We discover that the grand jury found the bill "true" as to the defendant Wilson alone; and we presume that the defendant contends that he cannot be convicted and sentenced alone for an affray, because that is the fighting of two or more persons in a public place, to the terror of the citizens. The argument might avail him if it were not established by authority that such an indictment for an affray (238) includes a charge of a mutual assault and battery, under which one of the parties may be convicted, while the other is found not guilty. S. v. Allen, 4 Hawks, 358, is the case of an indictment substantially the same with the present, and the decision in that case must prevail in this. Had the bill of indictment simply charged the parties with making an affray, without stating in what manner or by what acts, it would have been defective. S. v. Woody, 2 Jon., 335. But here, after the action of the grand jury, the indictment was in legal effect one for an assault and battery, and the defendant was properly found guilty and sentenced to pay a fine under it. The judgment must be affirmed.
PER CURIAM. There is no error.
Cited: S. v. Brown, 82 N.C. 589; S. v. Harbison, 94 N.C. 887; S. v. Lachman, 98 N.C. 765; S. v. Watkins, 101 N.C. 704; S. v. Griffin, 125 N.C. 694.