
    
      GUERNSEY COUNTY
    
    MARCH TERM, 1817.
    
    Present — TAPPAN, President — COMBER, SPEARS and KIRKPATRICK, Associates.
    
    OHIO vs. FOY & M'LAUGHLIN.
    On an indictment for a joint offence, one defendant cannot be a witness for or against the othei s.
    An agreement to fight, may be inferred from the conduct of the parties.
    Two persons are indicted for an affray under the statute, one pleads guilty, the other is acquitted, they must both be discharged.
    Indictment for an affray.
    MCLaughlin pleaded guilty.
    Foy, not guilty.
    On the trial of Foy, M‘Laughlin was offered as a witness for the state by Harper, who observed, that as he had pleaded guilty to this indictment, he could have no interest in the event as to Foy.
    Herrick, for defendant,
    objected that he was clearly incompetent.
   President.

This is an indictment for a joint offence; and it seems that Foy and M'Laughlin have an equal interest in the event of the prosecution.

A witness is admissible and competent to prove a fact against his interest, in cases where he cannot be examined generally: but this witness is not offered on such grounds; he is not called to prove any one particular fact which it would appear to be against, his interest to establish, and which, although incompetent generally, he would be admitted to prove; he is offered as a witness competent to every point; he cannot be admitted, without establishing the position, that in all cases on indictments against several, for joint offences, some, by pleading guilty, become competent witnesses on the trial of the others, whether produced for or against them. I am not prepared to admit this to be a correct course of proceeding; the uniform practice is against it. The cause must proceed without his testimony.

Herrick, in Ms address to the jury, urged that an express agreement to fight, must be proven, to convict the

defendant on this indictment.

President, to the jury. — The statute law on which this indictment is framed, enacts, “that if any two persons shall agree and wilfully fight or box at fisticuffs, the persons so offending shall be deemed guilty of an affray,” &c. To convict the defendant, you must be satisfied, from the evidence, that he did agree to fight with McLaughlin, and that such agreement was carried into effect by their wilfully fighting or boxing.

It is not necessary that such agreement should appear to have been made in any form of words, or in writing. Consent is agreement: and it is sufficient if the defendant was consenting to the combat, either in words or by gestures; he must also have consented or agreed to commence the affray; for if he was unwilling to fight at first, and was forced into the quarrel, he is not guilty; for a peaceable and quiet man may be very willing to fight in defence of his person when violently assaulted; in such case he would not be guilty of any offence against the laws: nor would the agressor be liable to the penalties of this statute, they being confined'to those who fight by mutual consent or agreement.

Verdict, not guilty.

Harper then moved the court to pass sentence upon M‘Laughlin.

President. — The language of the statute is, “ if any two persons shall agree,” &e, “ the persons so offending,” &c. One person cannot be guilty of this offence; and notwithstanding the plea of McLaughlin, if it appears, from the whole record, that he is not guilty, we have no authority to award any of the penalties of this statute against him. The finding of the jury is conclusive as to this, that McLaughlin and Foy did not agree and fight at fisticuffs; McLaughlin cannot, therefore, be guilty of the offence charged in this indictment, and the judgment must be arrested.

So there must be three persons engaged in doing an unlawful act of violence, to make a riot. If, upon an indictment fer a riot, the jury find two of the defendants guilty, and acquit the rest, no judgment can be given, says lord Holt, Rex vs. Heaps, 2d Salk. 593. Of the same opinion was the court of King’s Bench, in the case of Rex. vs. Scott and another, 3d Burr. Rep. 1263. These cases are analogous to the one before us. The plea of this defendant confesses A no more than was established by the verdict in the case in Salkeld; as two could not be guilty of a riot in that case, so here whatever offence McLaughlin may have committed, he cannot be deemed guilty of this particular charge — Discharged.  