Person County NcArchives Court.....State, V. Allen & Royster 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:31 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

STATE v. ALLEN & ROYSTER.

(356)

From Person.

Indictment against two for an affray in "mutually assaulting and fighting with 
each other." The defendants were found not guilty of an affray, but that the 
defendant A. was guilty of an assault and battery upon it, the other 
defendant. Judgment on the conviction for an assault and battery may be 
pronounced.

The defendants were indicted in the following words, "the jurors for the state 
upon their oath present, that Thomas H. Allen, and William H. Royster, all 
late of the county of Person aforesaid, with force and arms, at Person 
aforesaid, on the 1th day of April, A. D., 1825, to, with, and against each 
other, did fight, and make an affray, to the nuisance of the citizens, and 
against the peace and dignity of the state." The defendants pleaded not 
guilty, and the jury found that the defendants were not guilty of an affray; 
but that the defendant Allen was guilty of an assault and battery upon the 
defendant Royster; and that the defendant Royster was not guilty.

Allen moved in arrest of judgment, because this was an indictment for an 
affray, and one of the defendants being acquitted, the other could not be 
guilty of the charge; and because on an indictment for an affray, one could 
not be found guilty of an assault and battery on the other.

The Court, Norwood, Judge, overruled the reasons, and pronounced judgment 
against Allen, from which he appealed.

Taylor, C. J.—There is no precedent in this case to govern the decision; but I 
think, upon general principles, and the reason of the thing, that the 
conviction is right. An affray is the fighting of two or more persons in a 
public place, to the terror of the citizens. The very definition therefore, 
includes an assault and battery; and if it was proved to the jury, that two 
men fought together (357) in a private place, and under such circumstances as 
that it could not be a terror to the people, I think there is no doubt that 
they might be acquitted of the affray, and convicted of the assault and 
battery; for this they have committed, though without the aggravation of an 
affray. If both might be so convicted, why not one? Certainly not because one 
person is incapale of committing an affray; for there is one case at least 
where he maybe singly indicted for it. 1 Hawks P. C. 63, S. 2, 4. Nor would it 
be necessary in such an indictment to specify the particular mode of the 
affray, for an aggravated assault by one person, is sometimes laid as an 
assault and affray. An affray being, therefore, an assault aggravated by the 
circumstances under which it is committed, would seem to fall within the 
general rule, that when an accusation includes an offence of inferior degree, 
the jury may discharge the defendant of the higher crime, and convict him of 
the less. 2 Camp., 583. As upon an indictment for burglariously stealing, the 
prisoner may be convicted of the theft and acquitted of the nocturnal entry, 
and robbery may be softened into felonious theft, and many other similar cases.

The only exception to this rule, arises from the prisoner's having been 
indicted for a different offence, whereby he would be deprived of any 
advantage which he would otherwise be entitled to claim; so that the 
prosecutor shall not be permitted to oppress the defendant, by altering the 
mode of proceeding; thus, on an indictment for felony, a prisoner is deprived 
of several advantages which he would have on an indictment for a misdemeanor, 
and therefore he cannot be convicted of the latter, upon an indictment for the 
former. No reason of this kind exists wherefore the defendant might not be 
convicted of the assault. The specific difference between this offence and a 
riot is, that there must be three persons at least to commit the latter 
offence, and if two only, are found guilty, they must be discharged; yet even 
in that case, if the defendants had been charged with committing the riot with 
divers other disturbers of the peace, judgment would have been pronounced. 
(358) 1 Ld. Raymond, 484. If A assault B, without provocation, in a public 
place, and a fight ensues, both would appear to be the aggressors to those who 
did not witness the beginning of the quarrel; but a jury, upon being informed 
of the origin of the strife, would, in most cases, think it unjust to subject 
B to the same punishment with A. I think the conviction proper.

Tho other Judges being of the same opinion,

Judgment affirmed.

Cited, St. v. Glenn, 119 N. C., 804.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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