Opinion
May 1813.
In an indictment against two for an affray, one may be acquitted and the other convicted.
To make a person guilty of an affray, it is not essential that the fighting take place with the consent of both parties. It is because the violence is committed in a public place, and to the terror of the people that the crime is an affray. [Acc. Simpson v. State, 356.]
Appeal in the nature of a writ of error from the Circuit Court of Claiborne. —
Cash and another have been indicted in the Circuit Court for an affray; the other had a separate trial, and was acquitted by the jury. Afterwards Cash was tried and found guilty; reasons in arrest of judgment were filed; the Circuit Court overruled the reasons, and fined Cash five dollars. From this decision an appeal has been taken to this court.
It has been here argued that Cash could not be considered guilty of an affray, as the other with whom he had been indicted had been acquitted; that an affray can never take place unless the parties fight by consent.
My opinion is, that Cash might well be convicted and punished, although the man with whom he fought was acquitted; that to make a man guilty of an affray, it is not essential that the fighting took place with the consent of both parties.
It is because the violence is committed in a public place, and to the terror of the people, that the crime is called an affray, instead of assault and battery; and not because it took place by the mutual consent of the parties.
See 1 Hawkins' Pleas of the Crown, chapters Assault, Battery, and Affray.
The judgment of the Circuit Court must be affirmed.