Commonwealth v. Perdue , 2 Va. 227 ( 1820 )

BROCKENBROUGH, J.,

delivered the opinion and judgment of the Court:

It was competent for the Attorney prosecuting for the Commonwealth to insert in, hjs 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 ar,e charged, judgment must be rendered in this Case for both Defendants, which is to be certified.”