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[Cite as State v. Griffin, 125 N.C. 692, 34
S.E. 513 (1899).]
STATE v. WILLIAM GRIFFIN, THOMAS GRIFFIN.
(Decided 12 December, 1899.)
1. When the affray charged is the fighting of two
or more persons in a public place, the indictment, in effect, charges several
assaults and batteries, and one bill is used to avoid several trials for same
2. The public place need not be specified, and need
not be proved.
3. As an indictment for an affray charges mutual
assaults, one may be convicted and the other acquitted. The same law is equally
applicable to both offenses.
Indictment for an affray,
tried before Coble, J., at January Term, 1899, of Union. The defendants were indicted for committing an affray
with D. E. Sherrin (p.693)in a public place,
and were convicted, sentenced, and appealed. Their grounds of exception are
stated in the opinion.
Messrs. Armfield & Williams for
Mr. Brown Shepherd with Attorney-General for the
Clark, J. The indictment is
lost, but an agreement is sent up in the record, that it was in the usual form
for an "affray."
Four defendants were on trial. The evidence was that the melee
occurred in the road, but it was not stated whether or not it was a public road.
The defendants asked the Court to charge the jury that they must acquit the
defendants unless they were satisfied beyond a reasonable doubt that the
fighting was in a public place, and excepted to the refusal so to charge. An
affray may be committed by "going armed with unusual and dangerous weapons, to
the terror of the people." State v. Huntley, 25 N.C., 418 . But when the
affray charged is the fighting of two or more persons on a public highway or
street, or simply in a public place, the indictment is in effect merely for the
several assaults and batteries, one bill being used simply to avoid several
trials for the same offense. This is recognized in State v.
Baker, 83 N.C., 649 , in which it is said the public place need not be
specified, and, of course, therefore, it need not be proved. In the same case it
is said that, on an indictment for an affray, one may be convicted, and the
other acquitted, for the indictment being for mutual assaults the defendant is
"convicted of the offense with which he is legally charged"--citing State v. Brown, 82 N.C., 585 , which holds that an
indictment on a conviction for an affray may be legally described as for an
assault and battery, citing State v. Allen, 11 N.C., (p.694)356 , and State v.
Wilson, 61 N.C., 237 .
This disposes also of the exception that the Court charged the law as
to mutual assaults and batteries, without charging the specific law as to
affrays. This was for the very sufficient reason that when the affray is charged
to have been by fighting of two or more, there is no distinction between the law
of affray, and that of assault and battery, by which it is committed. State v. Perry, 50 N.C., 9.
The other prayer for instruction was given in substance, and need not