John D. Cash v. State

*198 White, J. sitting alone, delivered the following opinion. 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 guil *199 ty ; 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 Hawkin’s pleas of the Crown Chapters assault battery and affray. The judgment of the circuit court must be affirmed.