
    No. XXIV.
    Saddler v. The Republic.
    (See .)
    
      Appeal from Lamar County.
    
    
      
      .—Saddler v. Republic, p. 610.
      1 Unnecessary averments and allegations not essential to constitute the offense are treated as surplusage in indictments. State v. Washington, 19 T., 128; State v. Moreland, 27 T., 727; Henderson v. State, 2 T. App., 154; Mayo v. State, 7 T. App., 342; Smith v. State, 7 T. App., 382; Warren v. State, 17 T. App., 207; Cudd v. State, 28 T. App., 124; Hammons v. State, 29 T. App., 445; Taylor v. State, 29 T. App., 466.
      2 Affray defined. State v. Washington, 19 T., 129; Shelton v. State, 30 T., 432; State v. Billingsley, 43 T., 93; Pollock v. State, 32 T. Cr., 29; Ex parte Freeland, 38 T. Cr., 321.
    
   OCHILTREE, Justice.

—At the fall term, 1843, of the District Court of Lamar County, the grand jury of the said county found a true bill against Hiram Saddler, Thomas Doss, Joshua Dillingham and C. W. Saddler for an affray. At the next spring term the district attorney entered a discontinuance (nolle prosequi) as to Dillingham. The other defendants being in custody pleaded “not guilty.” A jury were impaneled, who after hearing the evidence, etc., returned into court this verdict: “We the jury find that Hiram Saddler is guilty of an affray. A. G-. Kimball, foreman.”

Reasons in arrest of judgment were filed and overruled by the court below, who fined Saddler $10 with the costs.

From this decision, an appeal has been taken to this court.

Affray is an offense at common law.

The district attorney, who drew this indictment, has thought proper slightly to vary from the usual precedent, and in so doing has certainly not strengthened his indictment. He charges, that “Hiram Saddler and Thomas Doss and Joshua Dillingham and Westly Saddler, late of said county, on the first day of February, in the year of our Lord one thousand eight hundred and forty-three, being then and there unlawfully assembled together, in a warlike manner, in a certain highway, the same being a public road, in the county of Lamar aforesaid, unlawfully and to the great terror and disturbance of divers good citizens, then and there being, did quarrel and fight and make an affray,” etc. Now as quarreling and fighting, eo nomine, are not offenses known either to the common law or to the statutes of the Eepublic of Texas, we will treat them as surplusage, which will leave tile indictment single and in strict conformity to the precedents and law.

The reasons filed in arrest of judgment and depended on here resolve themselves into one only, viz: That H. Saddler could not be considered guilty of an affray, as the others with whom he had been indicted had not been also found guilty; that an affray can never take place unless the parties fight by consent.

We think differently. Saddler might well be convicted although the men with whom he fought were acquitted. It is not essential, to constitute an affray, that the fighting should be by consent of the parties concerned. It is not the mere fighting of the persons engaged that constitutes the gravamen of this offense. “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.” See Cash v. State, 2 Tenm, 198, 199; Hawkins’ Pleas of the Crown, chaps. A. and B., and “Affrays.”

The judgment of the court below must be in all things affirmed.

Affirmed.  