Hawkins v. State , 13 Ga. 322 ( 1853 )

By the Court.

Warner, J.

delivering the opinion.

The defendants were indicted for an affray, which is defined by our Code, to be “ the fighting of two or more persons in some public place, to the terror of the citizens, and disturbance of the'public tranquility.” Prince, 643.

[1.] The defendants are to be tried together, and for the purposes of the trial, and in making their defence, are to be considered as having one common interest; and this view of the question disposes of the objections made to the refusal of the Court to allow each defendant to strike seven of the Jurors peremptorily,. and refusing to allow the counsel for one of the defendants to conclude the argument to the Jury, the other defendant having introduced evidence in his behalf to the Jury.

Where two are indicted for an affray, the successful defence of one will operate as an acquittal of both; as where the evidence shows that one of the parties acted entirely in self-defence, while the other assaulted and beat him, the aggressor may be guilty of an assault and battery, but neither of them guilty of an affray; and neither can be convicted on an indictment therefor; so that on the trial of an indictment for an affray, the aggressor is as much interested to show that both parties did not fight, as the innocent party is to show that fact; the defence of one enures to the benefit of the other.

[2.] But it is said, there is no evidence that Hawkins, one of the defendants, fought at all, and that an affray cannot be committed by words alone. The evidence is, that an altercation took place between the parties in a public street in Milledgeville, at the instance of Hawkins, who first accosted Bonner. Bonner then drew his knife, cut at Hawkins. Hawkins then drew his knife from his pocket, but did not use it, being prevented by the bystanders. The drawing his knife and attempting to use it on that occasion, was an act quite significant of his intention, had he not been prevented from using it. The words alone,, of the parties, independent of their acts, would 'not have constituted an affray; but their words, accompanied by their acts respectively, in drawing their knives and attempting to use them, was calculated to terrify the good citizens of Milledgevillo, and disturb the public tranquility. 1 Russell on Crimes, 271.

[3.] One who aids, assists, and abets an affray, is guilty as principal. Carlin vs. The State, 4 Yerger's R. 143. The Court instructed the Jury in the language of the Code, in relation to the offence, and they have found, by their verdict, both defendants guilty ; and we cannot hold, from the facts apparent on the face of this record, that their verdict was without evidence, as to all the necessary elements to constitute the offence of an affray.

Let the judgment of the Court below be affirmed.