Opinion
01-01-1820
The Commonwealth v. Mark Perdue and Samuel Dillion, Senior
These two Defendants were indicted before the Superior Court of Franklin county, for an affray in assaulting and beating each other, " to the terror of sundry citizens then and there assembled, & c." The verdict of the jury acquitted both of them of the affray, but found the Defendant Dillion guilty of a breach of the peace in assaulting the other Defendant, Perdue, and found, conditionally, that if the Law be against the said Dillion, then they find him guilty, and assess his fine to one dollar; but if the Law be for him, then they find him not guilty. The question was adjourned to this Court, what judgment should be rendered in this Case.
OPINION
Brockenbrough, J.
It was competent for the Attorney prosecuting for the Commonwealth to insert in his Indictment separate Counts, charging each Defendant with an assault and battery, and in such case the jury might have convicted either or both of the Defendants of the assault, although they should be acquitted of the affray; as he has not done so, but has proceeded to trial on the joint offence charged against both, he cannot obtain judgment against one of them for a separate offence which is not charged against him. The following judgment is to be entered: " The Court is unanimously of opinion, and doth decide, that as there is no separate Count in this Indictment, charging the Defendant Dillion with an assault on the other Defendant, Perdue, and as both Defendants are acquitted of the affray with which they are charged, judgment must be rendered in this Case for both Defendants, which is to be certified."